source: Caselaw Access Project

author: WINDOM, Presiding Judge.

license: Public Domain

text:
    G.M. v. STATE of Alabama.
    CR-10-1083.
    Court of Criminal Appeals of Alabama.
    Dec. 14, 2012.
    Rehearing Denied Feb. 8, 2013.

      Tobie J. Smith, Birmingham, for appellant.
    Luther Strange, atty. gen., and Ferris Stephens, asst. atty. gen., for appellee.
   WINDOM, Presiding Judge.

G.M. appeals his guilty-plea juvenile-delinquency adjudication for unlawful possession of a controlled substance. See § 13A-12 — 212(a)(1), Ala.Code 1975. On March 4, 2011, G.M. filed a motion to suppress evidence in which he argued that the search and subsequent seizure of cocaine from his wallet violated the 4th and 14th Amendments to the Constitution of the United States and Art. I, § 5, of the Alabama Constitution of 1901. Following a hearing, the juvenile court denied G.M.’s motion. Thereafter, G.M. pleaded “true” to the charge of unlawful possession of a controlled substance and reserved the right to appeal the denial of his motion to suppress.

During the suppression hearing, the State presented evidence indicating that G.M. and E.M., G.M.’s cousin and close friend, were students at Homewood High School, a public school. E.M. was brought to the assistant principal’s office for having a cellular telephone on campus, in violation of school policy. After E.M. denied having the telephone, Assistant Principal Eddie Cunningham used a metal detector to scan E.M. in an attempt to locate the cellular telephone. The metal detector sounded as it passed over E.M.’s back pocket. Cunningham then instructed E.M. to remove the contents of his pocket, which contained E.M.’s wallet and a battery for a cellular telephone. Cunningham opened the wallet and discovered several small bags of cocaine.

After discovering the cocaine, Cunningham asked E.M. who he had ridden to school with that morning and with whom he had been associating that day. E.M. told Cunningham that he had been with G.M. earlier that day. At that point, an English language learning (“ELL”) teacher, who was there to translate for E.M., suggested that school officials question G.M. The ELL teacher described E.M. and G.M. as “peas [in] a pod.” (R. 10.) Cunningham informed the school’s principal, Dr. Kevin Maddox, that cocaine had been found on E.M. and that G.M.’s name had been mentioned during the investigation.

Dr. Maddox explained that, based on his personal observations of E.M. and G.M. and the “web” of information from other students and teachers, the boys’ “interactions] with one another [were] not typical of [the] studentfs] at Homewood High School.” (R. 28-29.) Dr. Maddox testified that E.M. and G.M.’s close association and behavior led school officials to believe that they were in a gang together. Because E.M. and G.M. were close friends, had been together earlier that day, and were possibly in a gang, Dr. Maddox called G.M. into his office for questioning about cocaine.

Once G.M. arrived in the principal’s office, Dr. Maddox explained to G.M. that his name had been mentioned during an investigation of another student and asked G.M. if he had “anything on [him] today at school that [he was] not suppose[d] to have [there].” (R. 17.) G.M. replied that he did not. Dr. Maddox then informed G.M. that, out of concern for student safety, “[he] was going to conduct a search to make sure [G.M.] didn’t have anything ... on him.” (R. 17.) G.M. was cooperative and emptied his pockets as instructed. While looking through the items G.M. placed on the table, Dr. Maddox discovered a small bag of cocaine inside the pocket of G.M.’s wallet. The cocaine found in G.M.’s wallet formed the basis of his juvenile adjudication. After the hearing, the juvenile court denied G.M.’s motion to suppress.

On appeal, G.M. argues that the juvenile court erred in denying his motion to suppress the cocaine found in his wallet. Specifically, he contends that Dr. Maddox lacked the reasonable suspicion necessary to justify the search of his wallet. According to G.M., his association with E.M., on whom school officials had found cocaine earlier that day, was the sole basis for searching G.M.’s wallet. From there, G.M. asserts that his “association with a known or suspected wrongdoer is not sufficient to give rise to a reasonable suspicion”; therefore, the search of his wallet violated his constitutional rights. (G.M.’s brief, at 24.) This Court agrees.

In New Jersey v. T.L.O., 469 U.S. 325, 341-43,105 S.Ct. 733, 83 L.Ed.2d 720 (1985), the Supreme Court of the United States held that the appropriate standard for assessing the legality of a search of a student by a public-school official is reasonable suspicion. In reaching its decision, the Court explained:

“[T]he legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider ‘whether the ... action was justified at its inception,’ Terry v. Ohio, 392 U.S. [1,] 20, 88 S.Ct. [1868,] 1879 [(1968)]; second, one must determine whether the search as actually conducted ‘was reasonably related in scope to the circumstances which justified the interference in the first place,’ ibid. Under ordinary circumstances, a search of a student by a teacher or other school official will be ‘justified at its inception’ when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
“This standard will, we trust, neither unduly burden the efforts of school authorities to maintain order in their schools nor authorize unrestrained intrusions upon the privacy of schoolchildren. By focusing attention on the question of reasonableness, the standard will spare teachers and school administrators the necessity of schooling themselves in the niceties of probable cause and permit them to regulate their conduct according to the dictates of reason and common sense. At the same time, the reasonableness standard should ensure that the interests of students will be invaded no more than is necessary to achieve the legitimate end of preserving order in the schools.”

Id. at 341-43 (footnotes omitted). Further,

“ ‘In reviewing reasonable suspicion determinations, courts must look at the “ ‘totality of the circumstances” ’ to see whether the detaining officer had a “ ‘particularized and objective basis’ ” for suspecting wrongdoing. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). “This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” Arvizu, 534 U.S. at 273, 122 S.Ct. 744 (quoting Cortez, 449 U.S. at 418, 101 S.Ct. 690).’ ”

Muse v. State, 42 So.3d 789, 791-92 (Ala.Crim.App.2009) (quoting State v. Odom, 872 So.2d 887, 890 (Ala.Crim.App.2003)). “ ‘[T]he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.’ ” United States v. Nunez, 455 F.3d 1223, 1226 (11th Cir.2006) (quoting Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673,145 L.Ed.2d 570 (2000)).

This Court has explained:

“ ‘ “Reasonable suspicion is a less demanding standard than probable cause,” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990), requiring only that the detaining officers “have a particularized and objective basis for suspecting the person detained of criminal activity,” Webb v. State, 500 So.2d 1280, 1281 (Ala.Crim.App.), cert. denied, 500 So.2d 1282 (Ala.1986).’ ”

State v. Davis, 7 So.3d 468, 470 (Ala.Crim.App.2008) (quoting Wilsher v. State, 611 So.2d 1175, 1179 (Ala.Crim.App.1992)). Although reasonable suspicion is a less demanding standard than probable cause, a defendant’s mere association with a gang or with a known criminal is insufficient to create a reasonable suspicion that the defendant is engaged in wrongdoing. See State v. Jones, 114 N.M. 147, 151, 835 P.2d 863, 867 (N.M.Ct.App.1992) (holding that mere association with a known gang member does not amount to reasonable suspicion because the officers had “nothing connecting this individual defendant to a particular crime or crimes, except the likelihood that he was a gang member”); State v. Neal, 142 N.M. 176, 185, 164 P.3d 57, 66 (2007) (holding that a “[djefendant’s mere association with a convicted felon ..., who was under surveillance in an ongoing drug investigation, was insufficient to create reasonable suspicion of Defendant ... ”); State v. Varnado, 582 N.W.2d 886, 890 (Minn.1998) (holding that the mere association with a suspected drug dealer does not provide reasonable suspicion); United States v. Coggins, 986 F.2d 651, 655 (3d Cir.1993) (“Mere association with a known criminal cannot on its own be a basis for a ‘reasonable suspicion.’ ”) (quoting Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979)).

Here, Dr. Maddox’s basis for searching G.M.’s wallet was Dr. Maddox’s belief that G.M. might be associated with a gang and information that, earlier in the day, G.M. was with an individual, E.M., on whom school officials had found cocaine. G.M.’s association with E.M. and a gang, without more, was insufficient to create a reasonable suspicion that G.M. was involved in wrongdoing. Jones, 114 N.M. at 151, 835 P.2d at 867. Therefore, the juvenile court erroneously denied G.M.’s motion to suppress. Accordingly, the judgment of the juvenile court is reversed, and this cause is remanded for further proceedings.

REVERSED AND REMANDED.

WELCH, KELLUM, BURKE, and JOINER, JJ., concur.

      . E.M. and G.M. do not speak English well.


author: BRYAN, Justice. MOORE, Chief Justice

text:
    Ex parte State of Alabama. (In re G.M. v. STATE of Alabama).
    1120593.
    Supreme Court of Alabama.
    Sept. 13, 2013.
    Luther Strange, atty. gen., and Andrew L. Brasher, deputy atty. gen., and Ferris W. Stephens, asst. atty. gen., for petitioner.
    Tobie J. Smith of Legal Aid Society of Birmingham, for respondent.
   BRYAN, Justice.

The State sought certiorari review of a decision of the Court of Criminal Appeals reversing the Jefferson Juvenile Court’s decision to deny G.M.’s motion to suppress evidence that G.M. argues was obtained pursuant to an illegal search. We granted certiorari review to consider as a question of first impression whether evidence of a public-school student’s association with an individual known to be involved in criminal activity and suspected of being affiliated with a gang, without more, constitutes reasonable grounds for a search of the student by a school official under the Fourth Amendment to the Constitution of the United States. We conclude that it does not. Therefore, we affirm the judgment of the Court of Criminal Appeals.

Facts and Procedural History

On the morning of December 13, 2010, E.M. met with Eddie Cunningham, an assistant principal at Homewood High School, with regard to an alleged violation of the school’s cellular-telephone policy. Cunningham searched E.M., using a metal detector, to determine whether E.M. had a cellular telephone on his person. The metal detector went off as it passed over E.M.’s back pocket, and Cunningham asked E.M. to remove the contents of that pocket. E.M. pulled out his wallet, among other things. In looking through the wallet, Cunningham discovered several small bags of what appeared to be, and subsequently turned out to be, cocaine.

After discovering the cocaine, Cunningham asked E.M. who he had been with earlier that morning and E.M. responded that he had been with his cousin, G.M. E.M.’s English Language Learners (“ELL”) teacher, who had been called in to interpret for E.M. during the search, told Cunningham that E.M. and G.M. had been together earlier that day and that G.M. and E.M. were “like peas [in] a pod.... [T]hey stay together.”

Cunningham then informed Dr. Kevin Maddox, the principal of Homewood High School, that E.M. had been found with what appeared to be cocaine in his wallet. Cunningham also gave Maddox G.M.’s name as someone with whom E.M. had associated earlier in the day and told him that the ELL teacher had stated that the two students were often together and that she had “concerns” about them.

Maddox summoned G.M. to his office. Maddox asked G.M. whether he had anything with him at school that day that he was not supposed to have. G.M. answered that he did not. Maddox then informed G.M. that he was going to conduct a search of his person, and he asked G.M. to empty his pockets. G.M: complied and removed his wallet, among other things, and put it on a table. Maddox found a small bag of what appeared to be cocaine inside a pocket of G.M.’s wallet.

A delinquency complaint was filed against G.M. in the juvenile court alleging unlawful possession of a controlled substance. G.M.’s parents were made parties to the case. On March 4, 2011, G.M. moved the juvenile court to suppress evidence of the cocaine found in his wallet, arguing that Maddox’s search had been conducted in violation of his rights under the Fourth and Fourteenth Amendments to the Constitution of the United States and Article I, § 5, of the Alabama Constitution of 1901. After a hearing, the juvenile court denied G.M.’s motion to suppress. G.M. pleaded true to the delinquency allegation, but he reserved the right to appeal the denial of his motion to suppress evidence of the cocaine. The juvenile court sentenced G.M. to probation.

G.M. moved the juvenile court to alter, amend, or vacate its order. The motion was denied, and G.M. appealed to the Court of Criminal Appeals. On December 14, 2012, the Court of Criminal Appeals unanimously reversed the juvenile court’s judgment and remanded the cause for further proceedings in the juvenile court. G.M. v. State, 142 So.3d 819 (Ala.Crim.App.2012). The State applied for a rehearing, which the Court of Criminal Appeals overruled on February 8, 2013. The State then petitioned for certiorari review, which we granted to consider as a question of first impression whether Maddox’s cited grounds for searching G.M. — G.M.’s association with E.M. on the morning that E.M. was found with cocaine on his person at school as well as the cousins’ suspected gang affiliation — were sufficient to justify the search.

Analysis

The Supreme Court of the United States has stated:

“[T]he legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider ‘whether the ... action was justified at its inception,’ Terry v. Ohio, 392 U.S. [1], at 20 [(1968) ]; second, one must determine whether the search as actually conducted ‘was reasonably related in scope to the circumstances which justified the interference in the first place,’ ibid. Under ordinary circumstances, a search of a student by a teacher or other school official will be ‘justified at its inception’ when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

New Jersey v. T.L.O., 469 U.S. 325, 341-42, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (emphasis added; footnotes omitted).

More recently, the Supreme Court has stated regarding school searches:

“A number of our cases on probable cause have an implicit bearing on the reliable knowledge element of reasonable suspicion, as we have attempted to flesh out the knowledge component by looking to the degree to which known facts imply prohibited conduct, the specificity of the information received, and the reliability of its source. At the end of the day, however, we have realized that these factors cannot rigidly control, and we have come back to saying that the standards are ‘fluid concepts that take their substantive content from the particular contexts’ in which they are being assessed.
“Perhaps the best that can be said generally about the required knowledge component of probable cause for a law enforcement officer’s evidence search is that it raise a ‘fair probability,’ or a ‘substantial chance,’ of discovering evidence of criminal activity. The lesser standard for school searches could as readily be described as a moderate chance of finding evidence of wrongdoing.”

Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 370-71, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (emphasis added; citations omitted).

Under the standard articulated by the Supreme Court in T.L.O. and Safford, this Court must determine whether the search of G.M. was justified at its inception, or, in other words, whether the facts before Principal Maddox at the time of the search raised a reasonable suspicion of a “moderate chance of finding evidence of wrongdoing” on the part of G.M. Safford, 557 U.S. at 371. The State argues that “Maddox had strong reasons to search G.M. both as a matter of ‘reasonable suspicion’ and because of the legitimate government interest in the safety of G.M. and other students.” The State’s brief, at 19. Specifically, the State argues:

“Maddox had reasonable suspicion that G.M. was in possession of contraband. Maddox knew how close the boys were and how close in time E.M. said he and G.M. were with each other before the packets of cocaine were found on E.M. Maddox had experience and a good track record for finding additional contraband on students who had just been with a student who was caught with contraband. Maddox had long suspected E.M. and G.M. of being associated with a gang. And the ELL teacher suggested that Maddox bring in G.M. on this investigation.”

The State’s brief, at 20. The State also argues:

“[Maddox] here knew of the connection between E.M. and G.M., as the evidence indicated that these two students constantly ‘stayed together’ and were ‘two peas in a pod.’ A trained principal knows and has experience and common knowledge of how students normally act, and how they have a pattern at this age to stay together, how they might copy each other’s behaviors, respond to peer pressure, and want to be part of the crowd in behavior bad or good. In this case, the record shows that [Maddox] knew that E.M. and G.M. were not only-inseparable, but in this instance G.M. was very possibly the only student who he could speak to in his native language of Spanish, he was his relative, and of the same culture, which meant that E.M. would see G.M. outside of school. [Maddox] was watching as these two came attired for school indicating that they were in the same gang, and he stated in his testimony that ‘[i]t is not difficult usually for us to establish someone’s involved in a gang.’ Finally, Maddox received information about these students from the ELL teacher who had intimate experience with these students. Maddox did not search G.M. on a ‘hunch’ or ‘mere association’; he was reasonably suspicious of G.M. under the circumstances.”

Although the State cites institutional knowledge that Maddox may have had as an administrator, Cunningham’s and Maddox’s testimony at the suppression hearing support the Court of Criminal Appeals’ characterization of the search of G.M. as being based on “a defendant’s mere association with a gang or with a known criminal.” G.M., 142 So.3d at 822. Maddox testified that he called G.M. into his office on the day of the incident based on “all the information that we had at that particular moment,” which, he acknowledged, was “[G.M. and E.M.’s] close relationship, the gang speculation and reports from the [ELL] teacher.” The ELL teacher did not testify at the suppression hearing, but Cunningham testified that the ELL teacher suggested to him that he look at G.M. because “[E.M. and G.M.] were together earlier in the day and that they’re usually like peas [in] a pod.”

With regard to the possible gang affiliation, Maddox testified that “[they] didn’t have any evidence that there was gang activity going on, but it’s not difficult usually for us to establish that someone’s involved in something like that. So, we had suspicions, but that was pretty much it.” Maddox listed indications such as students’ “actions, the way they interact with one another. The clothing they wear, just everything about them kind of gives us indications about whether they may or may not be [affiliated with a gang].” When asked for specifics regarding G.M. and E.M.’s alleged gang affiliation, however, Maddox testified: “[T]he best way I could put it would be their mannerisms when they’re together. The way they interact with one another is not typical of a student at Homewood High School.”

Cunningham testified that he gave Maddox G.M.’s name based solely on the fact that E.M. and G.M. had been together earlier in the morning on the day the search of E.M. revealed what appeared to be cocaine in his pocket and E.M. and G.M.’s close association. Maddox testified that he had “no knowledge that would have suggested that a search of [G.M.] on that day would produce cocaine” but noted that the school administration did have a “good trac[k] record” in finding additional contraband when it asked students who had been caught with contraband who they were with when they came to school on the day the contraband was discovered.

The State argues that “[t]his case is on all fours with Wynn v. Board of Education of Vestavia Hills, 508 So.2d 1170 (Ala.1987), the only Alabama precedent addressing what constitutes a reasonable search in a public school since the [United States] Supreme Court decided T.L.O.” The State’s brief, at 20. In Wynn this Court upheld a search of a student, who was one of two students left in a classroom during a time in which money was allegedly stolen. This Court held:

“Hill, as classroom teacher, had reasonable grounds for suspecting that a search of two students who had been alone in the classroom would turn up evidence that one of them had taken the money. There is no evidence that any other student had been in the classroom during the time when the theft could have occurred.... Given the classroom setting and the concern of the students in Hill’s class over the missing money, we conclude that the very limited search that occurred was not excessively intrusive and was reasonably related to the objective of the search.”

508 So.2d at 1171-72.

The State argues:

“In the same way reasonable suspicion was established because Wynn was one of two students who were in proximity to the suspected contraband money shortly before the teacher knew the theft had occurred, G.M. was also identified as being in close proximity to cocaine, near E.M., shortly before Maddox knew of E.M.’s possession of the cocaine. This case is actually even stronger than the State’s case in Wynn. Here, Maddox did not need to surmise that G.M. was in proximity to E.M. and packets of cocaine, because E.M. admitted that G.M. was; in fact the record indicates that G.M. was identified as being the only one E.M. had been with when this possession crime was occurring.”

The State’s brief, at 21.

The State’s argument in this regard is disingenuous at best. In Wynn, the identity of the wrongdoer was in question, and the allegedly violative search was narrowed to the two students who were present in the classroom when the alleged wrongdoing occurred. Here, however, the decision to search G.M. was based not on his proximity to a wrongdoing where the identity for the wrongdoer was unknown; the cocaine was found in E.M.’s possession. Instead, the search was based on his association with and proximity to E.M., the wrongdoer. Wynn does not address whether proximity to a wrongdoer constitutes reasonable grounds for a search. Therefore, it is distinguishable and does not support the State’s argument here.

The State also argues that “[t]he facts of this case are similar to cases in which courts have invoked the ‘moderate chance’ standard to conclude that school searches are constitutional.” The State’s brief, at 23-24. The State cites Lausin v. Bishko, 727 F.Supp.2d 610 (N.D.Ohio 2010), and M.C. v. Sigal, (No. 3:09-cv-1437) (D.Conn. August 4, 2010) (not reported in F.Supp.2d), in support of that argument.

However, neither Lausin or M.C. involves a circumstance in which the search of a student’s property or person was based on a student’s association with a known wrongdoer or on the student’s suspected affiliation with a gang. In Lausin, the student was seen entering a restroom shortly before a message threatening African-American students was found written on the restroom wall, and the school official had knowledge of previous complaints and comments made by the student against African-American students. 727 F.Supp.2d at 619-20. In M.C., the search of the juvenile defendant was precipitated by his refusal to unclench his buttocks, during a patdown search at a juvenile detention center. The alleged grounds for the searches in Lausin and M.C. were based on knowledge of the student’s own conduct or beliefs and proximity to the suspected wrongdoing. These cases, like Wynn, are distinguishable and fail to support the State’s arguments in this case.

G.M. cites three cases from Florida appellate courts in which, he argues, those courts “have held student searches unlawful in circumstances ... more analogous to the instant case,” G.M.’s brief, at 20: R.J.M. v. State, 456 So.2d 584 (Fla.Dist.Ct.App.1984); M.S. v. State, 808 So.2d 1263 (Fla.Dist.Ct.App.2002); and C.A. v. State, 977 So.2d 684 (Fla.Dist.Ct.App.2008). In each of those cases, the appellate court found the student’s association with or proximity to other students who were either suspected of or known to be involved in wrongdoing insufficient to establish reasonable suspicion justifying a search of the student.

In R.J.M., the Florida District Court concluded that the school official who had searched R.J.M. “[biased solely on the fact that R.J.M. was the friend of a female student who had, reportedly because of drugs, fainted at the public high school they both attended,” 456 So.2d at 584, “did not have anything remotely resembling the reasonable suspicion of R.J.M.’s wrongdoing which is required to justify a search of a student by a school official.” 456 So.2d at 585. In M.S., the Florida District Court stated: “Though school officials may have had reasonable suspicion that the other student [with whom M.S. had been seen earlier in the day] was ‘Smokin’ in the Boys’ Room,’ their suspicion as to the other boy could not be transferred to M.S.” 808 So.2d at 1265 (footnote omitted). In C.A., the Florida District Court held that C-A.’s conversation with another student, who was found to smell strongly of marijuana, was not reasonable grounds for searching C.A. because “suspicion by association or transference is not ‘reasonable suspicion.’ ” 977 So.2d at 686. The court in C.A. also stated that “[although a ‘hunch’ or an ‘intuition’ may in some instances disclose wrongdoing, these more ephemeral precursors to questioning are insufficient as a matter of law.” Id.

We agree with G.M. that the cited cases from the Florida District Courts of Appeal are more analogous to this case and offer a sound rationale that can be applied here. In another context, the United States Supreme Court has stated that “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Ybarra v. Illinois, 444 U.S. 85, 90, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). Although we recognize that the standard of suspicion is lower for searches conducted in a public-school setting, we do not believe that it is so low as to allow searches based solely on a student’s association with a known wrongdoer or general speculation as to the student’s possible gang affiliation.

The United States Supreme Court has stated:

“[T]his Court has previously held that ‘special needs’ inhere in the public school context. While schoolchildren do not shed their constitutional rights when they enter the schoolhouse, ‘Fourth Amendment rights ... are different in public schools than elsewhere; the “reasonableness” inquiry cannot disregard the schools’ custodial and tutelary responsibility for children.’ ”

Board of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 829-30, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002) (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (citations omitted)). However, we cannot agree with the State that Principal Maddox’s search in this case was based on a reasonable suspicion that there was a moderate chance of finding evidence of wrongdoing by G.M.

The State argues that “the weight of legitimate governmental interests is necessarily a consideration in an evaluation of virtually any reasonable search,” the State’s brief, at 26, and that the .governmental interest at issue in this case was compelling. However, none of the cases cited by the State indicates that a legitimate government interest, even a compelling one, will justify a search of a student based solely on the student’s association with a known wrongdoer. The Supreme Court in T.L.O. emphasized the need to “strike the balance between the schoolchild’s legitimate expectations of privacy and the school’s equally legitimate need to maintain an environment where learning can take place.” 469 U.S. at 340. Permitting searches of public-school students based solely on their association with other wrongdoers would effectively negate the students’ rights under the Fourth Amendment. We are unwilling to set such a standard.

That said, however, like the Supreme Court in Safford,

“we mean to cast no ill reflection on [Principal Maddox], for the record raises no doubt that his motive throughout was to eliminate drugs from his school.... Parents are known to overreact to protect their children from danger, and a school official with responsibility for safety may tend to do the same. The difference is that the Fourth Amendment places limits on the official, even with the high degree of deference that courts must pay to the educator’s professional judgment.”

557 U.S. at 377.

The search of G.M. by Principal Maddox, however well intentioned, was predicated solely upon G.M.’s association with E.M. and upon Maddox’s speculations as to G.M.’s and E.M.’s possible gang affiliation and, therefore, was not based on reasonable suspicion or justified at its inception. Under the standard set out in T.L.O., the search violated G.M.’s Fourth Amendment rights, and he was entitled to have the evidence obtained during that search suppressed.

Conclusion

In light of the foregoing, we agree with the Court of Criminal Appeals that the juvenile court erred by denying G.M.’s motion to suppress evidence of the cocaine found in his wallet, and the Court of Crimi- . nal Appeals properly reversed the juvenile court’s judgment. We, therefore, affirm the judgment of the Court of Criminal Appeals.

AFFIRMED.

STUART, BOLIN, PARKER, MAIN, and WISE, JJ., concur.

MOORE, C.J., concurs specially.

MURDOCK and SHAW, JJ., dissent.

MOORE, Chief Justice

(concurring specially).

I agree with the main opinion that the search of G.M. was unreasonable under Fourth Amendment jurisprudence and ex-cludable in a criminal prosecution. I write specially to explain that the evidence found on G.M. need not be excluded from use in assessing and imposing school discipline. “Most courts ... do not apply the federal constitutional exclusionary rules to ... school disciplinary proceedings....” 1 McCormick on Evidence § 173 (7th ed.2013). See Thompson v. Carthage School Dist., 87 F.3d 979, 980-82 (8th Cir.1996) (holding that the exclusionary rule should not be applied to exclude evidence in civil school-disciplinary hearings). See also Scanlon v. Las Cruces Public Schools, 143 N.M. 48, 52,172 P.3d 185,189 (Ct.App.2007) (holding that the exclusionary rule of the state constitution does not apply to school-disciplinary proceedings); T.M.M. ex rel. D.L.M. v. Lake Oswego School Dist., 198 Or.App. 572, 108 P.3d 1211 (2005) (same).

      . E.M. and G.M. speak Spanish as their primary language.

      . Our decision in this regard pretermits consideration of the State’s arguments as to the relative intrusiveness of the search.


author: PER CURIAM.

text:
    In re AMENDMENTS TO the FLORIDA FAMILY LAW RULES OF PROCEDURE; NEW RULES FOR QUALIFIED AND COURT-APPOINTED PARENTING COORDINATORS.
    No. SC13-1751.
    Supreme Court of Florida.
    July 3, 2014.
    William D. Palmer, Appellate Court Judge, Fifth District Court of Appeal, Chair, Committee on Alternative Dispute Resolution Rules and Policy, Daytona Beach, FL, and Susan C. Marvin, Senior Staff Attorney, Dispute Resolution Center, Tallahassee, FL, for Petitioner.
   PER CURIAM.

The Committee on Alternative Dispute Resolution Rules and Policy (ADR Committee) has filed a petition proposing amendments to the Family Law Rules of Procedure and new Rules for Qualified and Court-Appointed Parenting Coordinators. We have jurisdiction. See art. V, § 2(a), Fla. Const.

After the petition was filed, the proposals were published for comment in The Florida Bar News. Comments were received, and the ADR Committee filed a response. Upon consideration of the petition, the comments, and the Committee’s response, we adopt the amended and new rules as proposed.

Amendments to Family Law Rule of Procedure 12.742 (Parenting Coordination)

First, we adopt several amendments to rule 12.742. New subdivision (b) is adopted providing that each circuit shall establish a process for parenting coordinator qualification. New subdivision (g) is adopted providing that the court shall remove the parenting coordinator if the parenting coordinator becomes disqualified. Current subdivision (h) (Limitation of Authority) is reworded to (1) provide that the parenting coordinator cannot resolve substantive disputes between the parties, (2) provide a definition of a substantive dispute, and (3) provide that the parenting coordinator cannot make substantive recommendations concerning parental responsibility or timesharing to the court unless the court determines there is an emergency as defined by section 61.125(8), Florida Statutes (2013), the recommendation would be in the best interest of the child, and the parties agree that any parenting coordination communications that may be raised to support or challenge the recommendation will be permitted.

Current subdivision (j) (Written Communication with Court) is amended to (1) acknowledge that parenting coordinators are required by section 61.125 to report certain emergencies to the court without giving notice to the parties, (2) require the parenting coordinator to use the new proposed form (discussed below) when reporting emergencies to the court, (3) require the parenting coordinator to file a written request for a status conference if unable to perform his or her duties in accordance with the court’s direction, and (4) require the use of the new proposed form (discussed below) for requesting the status conference. New subdivision (n) provides the definition of a “parenting coordination session,” and a new committee note is added encouraging the referral of parties to other ADR processes in order to aid the development of “voluntary and mutually self-determined” parenting plans.

New Rules for Qualified and Court-Appointed Parenting Coordinators — Rule 15

Next, we adopt this new body of rules governing Parenting Coordinators. Part I sets forth ethical standards for parenting coordinators and reinforces the concepts of communication, negotiation, and facilitation upon which parenting coordination is based, as well as explaining the role of the parenting coordinator. The ethical standards address adherence to the role, competence, integrity, impartiality, conflicts of interest, compliance with statutory and other authority governing parenting coordination, marketing, adherence to other professional ethical standards by which the parenting coordinator is bound, confidentiality, duties regarding the initial session, fees, records, and responsibility to the courts. Part II addresses discipline and provides simply that complaints alleging violations of the standards for qualified and court-appointed parenting coordinators shall be filed with the Dispute Resolution Center which shall be responsible for enforcing the standards.

New and Amended Parenting Coordination Forms

Finally, we amend existing forms 12.984 and 12.998 and adopt two new forms.

Family Law Rules of Procedure Form 12.998 (Order of Referral to Parenting Coordinator). This form is amended to add language about requesting a status conference in the event the parenting coordinator is unable to adequately perform the duties in accordance with the court’s direction. It is also renumbered as form 12.984(a).

Family Law Rules of Procedure Form 12.984 (Response by Parenting Coordinator). This form is amended to incorporate the amendments to rule 12.742, and the new proposed Rules for Qualified and Court-Appointed Parenting Coordinators. It is renumbered as form 12.984(b).

New Family Law Rules of Procedure Form 12.984(c) (Parenting Coordinator Report of an Emergency). Under the proposed amendments to rule 12.742, this form will be used by parenting coordinators in order to report emergencies to the court, in compliance with section 61.125(8), Florida Statutes (2013).

New Family Law Rules of Procedure Form 12.984(d) (Parenting Coordinator Request for Status Conference). Under the proposed amendments to rule 12.742, this form will be used by the parenting coordinator to request status conferences in order to 1) request direction from the court, 2) request resolution by the court, 3) report noncompliance by a party, 4) report that the case is no longer appropriate for parenting coordination, 5) report that the parenting coordinator is no longer qualified, or 6) report that the parenting coordinator is unable or unwilling to continue to serve.

Accordingly, the Florida Family Law Rules of Procedure and forms are amended and the new Rules for Qualified and Court-Appointed Parenting Coordinators are adopted as set forth in the appendix to this opinion. Language added to the rules is underscored; deleted language is struck through. The committee notes are offered for explanation only and are not adopted as an official part of the rules.

The new and amended forms are fully engrossed and ready for use. The forms may also be accessed and downloaded from the Florida State Courts’ website at www. flcourts.org/resources-and-services/family-courts/family-law-self-help-information/ family-law-forms.stml. By adoption of the amended forms, we express no opinion as to their correctness or applicability.

The amended and new rules and forms are effective immediately upon the release of this opinion.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.

APPENDIX

Rule 12.742. Parenting Coordination

(a) [No change]
(b) Qualification Process. Each judicial circuit shall establish a process for determining that a parenting coordinator is qualified in accordance with the requirements established in the parenting coordination section of Chapter 61, Florida Statutes.
(cXb} Order Referring Parties to Parenting Coordinator. An order referring the parties to a parenting coordinator must be in substantial compliance with Florida Family Law Rules of Procedure Form 12.99884(a). The order must specify the role, responsibility, and authority of the parenting coordinator.
(d)4e) Appointment of Parenting Coordinator. The parties may agree in writing on a parenting coordinator subject to the court’s approval. If the parties cannot agree on a parenting coordinator, the court shall appoint a parenting coordinator qualified by law.
(e)(d) Response by Parenting Coordinator. The parenting coordinator must file a response accepting or declining the appointment in substantial compliance with Florida Family Law Rules of Procedure Form 12.984(b).
(f)(e4 Term of Service. The term of the parenting coordinator shall be as specified in the order of appointment or as extended by the court. The initial term of service shall not exceed two years. The court shall terminate the service on:
(l)-(2) [No change]
(g) Removal of Parenting Coordinator. The court shall remove the parenting coordinator if the parenting coordinator becomes disqualified under the parenting coordination section of Chapter 61, Florida Statutes, or if good cause is shown.
(h)(f) Appointment of Substitute Parenting Coordinator. If a parenting coordinator cannot serve or continue to serve, a substitute parenting coordinator may be chosen in the same manner as the original.
(i)(g) Authority with Consent. The parenting coordinator may have additional authority with express written consent. If there has been a history of domestic violence the court must find that consent has been freely and voluntarily given.
(l)-(3) [No change]
(jXh) Limitation of Authority. Ar-parenting--coordinator- -shall not have decision-making author-ity^-to — resolve-substantive disputes between — the—par-ties-.A dispute is substantive if it would
(-l-)-significantly— c-hange-the-quantity or-decrease-the-quality-of-time a child spends with either parent; or
(2) modify parental responsibilit-y-(1) A parenting coordinator shall not have decision making authority to resolve substantive disputes between the parties. A dispute is substantive if it would
(A) significantly change the quantity or decrease the quality of time a child spends with either parent; or (B) modify parental responsibility.
(2) A parenting coordinator shall not make a substantive recommendation concerning parental responsibility or timesharing to the court unless the court on its own motion or a joint motion of the parties determines that:
(A) there is an emergency as defined by the parenting coordination section of Chapter 61, Florida Statutes,
(B) the recommendation would be in the best interest of the child, and
(C) the parties agree that any parenting coordination communications that may be raised to support or challenge the recommendation of the parenting coordinator will be permitted.

(k)(i> Emergency Order.

(1) Consideration by the Court. Upon On the filing of an affidavit or verified report of an emergency by the parenting coordinator, the court shall determine whether the facts and circumstances contained in the report constitute an emergency and whether an emergency order needs to be entered with or without notice to the parties to prevent or stop furtherance of the emergency. ' Except for the entry of an ex parte order in accordance with (k)(2), the court shall set a hearing with notice to the parties to be held at the earliest possible time.
(2)-(4)[No change]
(l){j) Written Communication with Court. The parenting coordinator may submit a written report or other written communication regarding any nonconfi-dential matter to the court. Parenting coordinators are required, pursuant to the parenting coordination section of Chapter 61, Florida Statutes, to report certain emergencies to the court without giving notice to the parties. The parenting coordinator shall use a form in substantial compliance with Florida Family Law Rules of Procedure Form 12.984(c) when reporting any emergency to the court, whether or not notice to the parties is required by law. If the parenting coordinator is unable to adequately perform the duties in accordance with the court’s direction, the parenting coordinator shall file a written request for a status conference and the court shall set a timely status hearing. The parenting coordinator shall use a form in substantial compliance with Florida Family Law Rules of Procedure Form 12.984(d) to request a status conference. When notice to the parties is required, t¥he parenting coordinator must contemporaneously serve each party with a copy of the written communication.
(m)(k) Testimony and Discovery. A parenting coordinator shall not be called to testify or be subject to the discovery rules of the Florida Family Law Rules of Procedure unless the court makes a prior finding of good cause. A party must file a motion, alleging good cause why the court should allow the parenting coordinator to testify or be subject to discovery. The requesting party shall serve the motion and notice of hearing on the parenting coordinator. The requesting party shall initially be responsible for the parenting coordinator’s fees and costs incurred as a result of the motion.
(n) Parenting Coordination Session. A parenting coordination session occurs when a party and the parenting coordinator communicate with one another. A parenting coordination session may occur in the presence or with the participation of persons in addition to a party and the parenting coordinator. Unless otherwise directed by the court, the parenting coordinator shall determine who may be present during each parenting coordination session including, without limitation, attorneys, parties, and other persons.

Committee Notes

2010 Adoption. The provisions of subdivision (k) do not abrogate the confidentiality provisions of section 61.125, Florida Statutes. An exception to confidentiality must apply before invoking this subdivision of the rule.

2014 Revision. Parties are more likely to comply with a parenting plan which has been voluntarily and mutually self-determined by the parties without undue outside influence. Courts therefore should consider referring parties to mediation pri- or to parenting coordination when a parenting plan has not been agreed to by the parties or adopted by the court. Courts are also encouraged to review what additional forms of alternative dispute resolution as well as social, psychological and educational interventions may best assist the parties in a timely manner. In cases where parties are referred to a parenting coordinator to adopt or create a parenting plan, the court should consider whether the parties would be better served by the court determining certain aspects of the parenting plan (such as parental responsibility, time sharing schedule, etc.) prior to referral to a parenting coordinator. New subdivisions (b), (g), (j)(2), (l), and (n) were added and others were renumbered accordingly.

RULES FOR QUALIFIED AND COURT-APPOINTED PARENTING COORDINATORS

Parti. STANDARDS

Rule 15.000. Applicability of Standards

These standards apply to all qualified parenting coordinators and court-appointed parenting coordinators. A qualified parenting coordinator is anyone who is qualified to serve as a parenting coordinator pursuant to the parenting coordination section of Chapter 61, Florida Statutes, and has been approved by the court to serve as a qualified parenting coordinator or to be on a qualified parenting coordination panel for any circuit.

Rule 15.010. Parenting Coordination Defined

Parenting coordination is a child-focused alternative dispute resolution process whereby a parenting coordinator assists the parents in creating or implementing a parenting plan by facilitating the resolution of disputes between the parents by providing education, making recommendations, and, with the prior approval of the parents and the court, making limited decisions within the scope of the court’s order of referral. For the purposes of these standards, “parent” refers to the child’s mother, father, legal guardian, or other person who is acting as a parent and guardian.

Rule 15.020. Parenting Coordination Concepts

Parenting coordination is a child-focused alternative dispute resolution process that emphasizes the needs and interests of children, parents and families. It is based on the concepts of communication, education, negotiation, facilitation, and problem-solving. The role of a parenting coordinator includes the integration of skills and core knowledge drawn primarily from the areas of mental health, law, and conflict resolution.

Rule 15.030. Competence

(a) Professional Competence. Parenting coordinators shall acquire and maintain professional competence in parenting coordination. A parenting coordinator shall regularly participate in educational activities promoting professional growth.
(b) Circumstances Affecting Role. Parenting coordinators shall withdraw from the parenting coordination role if circumstances arise which impair the parenting coordinators’ competency.
(c) Skill and Experience. A parenting coordinator shall decline an appointment, withdraw, or request appropriate assistance when the facts and circumstances of the case are beyond the parenting coordinator’s skill or experience.
(d) Knowledge. A parenting coordinator shall maintain knowledge of all current statutes, court rules, local court rules, and court and administrative orders relevant to the parenting coordination process.

Rule 15.040. Integrity

(a)Avoiding Dual Relationships. A parenting coordinator shall not accept the role of parenting coordinator if there has been a prior personal, professional or business relationship with the parties or their family members. A parenting coordinator shall not enter into a personal, professional or business relationship with the parties or their family members during the parenting coordination process or for a reasonable time after the parenting coordination process has concluded.
(b) Respect for Diversity. Parenting coordinators shall not allow their personal values, morals, or religious beliefs to undermine or influence the parenting coordination process or their efforts to assist the parents and children. If the parenting coordinator has personal, moral, or religious beliefs that will interfere with the process or the parenting coordinator’s respect for persons involved in the parenting coordination process, the parenting coordinator shall decline the appointment or withdraw from the process.
(c) Inappropriate Activity. Parenting coordinators shall not engage in any form of harassment or exploitation of parents, children, students, trainees, su-pervisees, employees, or colleagues.
(d) Misrepresentation. A parenting coordinator shall not intentionally or knowingly misrepresent any material fact or circumstance in the course of conducting a parenting coordination process.
(e) Demeanor. A parenting coordinator shall be patient, dignified, and courteous during the parenting coordination process.
(f) Maintaining Integrity. A parenting coordinator shall not accept any engagement, provide any service, or perform any act that would compromise the parenting coordinator’s integrity.
(g) Avoiding Coercion. A parenting coordinator shall not unfairly influence the parties as a means to achieve a desired result.

Committee Notes

Any sexual relationship between a parenting coordinator and a party or a party’s family member is a form of exploitation and creates a dual relationship and therefore would be considered a violation of these standards.

A parenting coordinator may at times direct a party’s conduct. An example is when a parenting coordinator encourages compliance with a parenting plan by pointing out possible consequences of a party’s course of action. However, the means to direct behavior should not include unfairly influencing the parties. Examples of unfairly influencing the parties include lying to the parties or exaggerating the parenting coordinator’s power to influence the court.

Rule 15.050. Advice, Recommendations, and Information

(a) Informing Parties of Risks. Prior to a parenting coordinator making substantive recommendations to the parties regarding timesharing and parental responsibilities, the parenting coordinator should inform the parties of the inherent risk of making substantive recommendations without adequate data.
(b) Right to Independent Counsel. When a parenting coordinator believes a party does not understand or appreciate the party’s legal rights or obligations, the parenting coordinator shall advise the party of the right to seek independent legal counsel.

Rule 15.060. Impartiality

(a) Freedom from Favoritism and Bias. A parenting coordinator shall conduct the parenting coordination process in an impartial manner. Impartiality means freedom from favoritism or bias in word, action, and appearance.
(b) Disclosure. A parenting coordinator shall advise all parties of circumstances which may impact impartiality including but not limited to potential conflicts of interest bearing on possible bias, prejudice, or impartiality.
(c) Influence. A parenting coordinator shall not be influenced by outside pressure, bias, fear of criticism, or self-interest.
(d) Gifts. A parenting coordinator shall not give, accept or request a gift, favor, loan, or other item of value to or from a party, attorney, or any other person involved in and arising from any parenting coordination process.
(e) Prohibited Relationships. After accepting appointment, and for a reasonable period of time after the parenting coordination process has concluded, a parenting coordinator shall avoid entering into family, business, or personal relationships which could affect impartiality or give the appearance of partiality, bias, or influence.
(f) Withdrawal. A parenting coordinator shall withdraw from a parenting coordination process if the parenting coordinator can no longer be impartial.

Rule 15.070. Conflicts of Interest

(a) Generally. A parenting coordinator shall not serve as a parenting coordinator in a matter that presents a clear or undisclosed conflict of interest. A conflict of interest arises when any relationship between the parenting coordinator and the parenting coordination participants or the subject matter of the dispute compromises or appears to compromise the parenting coordinator’s impartiality.
(b) Disclosure. The burden of disclosure rests on the parenting coordinator. All such disclosures shall be made as soon as practical after the parenting coordinator becomes aware of the interest or relationship. After appropriate disclosure, the parenting coordinator may serve if all parties agree. However, if a conflict of interest clearly impairs a parenting coordinator’s impartiality, the parenting coordinator shall withdraw regardless of the express agreement of the parties.
(c)Solicitation Prohibited. A parenting coordinator shall not use the parenting coordination process to solicit, encourage, or otherwise incur future professional services with any party.

Committee Notes

The parenting coordination process may take place over a long period of time. Therefore, the parenting coordinator may initially accept an appointment where a potential conflict does not exist, but arises during the course of the parenting coordination process.

The disclosure requirements in this subdivision do not abrogate subdivision 15.040(a) which prohibits a parenting coordinator from accepting the role of parenting coordinator if there has been a prior personal, professional or business relationship with the parties’ or their family members. It is intended to address situations in which the conflict arises after the acceptance of appointment and encourage the timely disclosure to the parties.

Rule 15.080. Scheduling the Parenting Coordination Process

A parenting coordinator shall schedule parenting coordination sessions in a manner that provides adequate time for the process. A parenting coordinator shall perform parenting coordination services in a timely fashion, avoiding delays whenever possible.

Rule 15.090. Compliance with Authori-⅛

A parenting coordinator shall comply with all statutes, court rules, local court rules, and court and administrative orders relevant to the parenting coordination process.

Rule 15.100. Improper Influence

A parenting coordinator shall refrain from any activity that has the appearance of improperly influencing a court to secure an appointment to a case.

Rule 15.110. Marketing Practices

(a) False or Misleading Marketing Practices. A parenting coordinator shall not engage in any marketing practice, including advertising, which contains false or misleading information. A parenting coordinator shall ensure that any marketing of the parenting coordinator’s qualifications, services to be rendered, or the parenting coordination process is accurate and honest.
(b) Qualification. Any marketing practice in which a parenting coordinator indicates that such parenting coordinator is “qualified” is misleading unless the parenting coordinator indicates the Florida judicial circuits in which the parenting coordinator has been qualified.
(c) Prior Adjudicative Experience. Any marketing practice is misleading if the parenting coordinator states or implies that prior adjudicative experience, including, but not limited to, service as a judge, magistrate, or administrative hearing officer, makes one a better or more qualified parenting coordinator.
(d) Prohibited Claims or Promises. A parenting coordinator shall not make claims of achieving specific outcomes or promises implying favoritism for the purpose of obtaining business.
(e) Additional Prohibited Marketing Practices. A parenting coordinator shall not engage in any marketing practice that diminishes the importance of a party’s right to self-determination or the impartiality of the parenting coordinator, or that demeans the dignity of the parenting coordination process or the judicial system.

Committee Note

The roles of a parenting coordinator and an adjudicator are fundamentally distinct. The integrity of the judicial system may be impugned when the prestige of the .judicial office is used for commercial purposes. When engaging in any parenting coordinator marketing practice, a former adjudicative officer should not lend the prestige of the .judicial office to advance private interests in a manner inconsistent with this rule. For example, the depiction of a parenting coordinator in judicial robes or use of the word “judge” with or without modifiers to the parenting coordinator’s name would be inappropriate. However, an accurate representation of the parenting coordinator’s judicial experience would not be inappropriate.

Rule 15.120, Concurrent Standards

Other ethical standards to which a parenting coordinator may be professionally bound are not abrogated by these rules. In the course of performing parenting coordination services, however, these rules prevail over any conflicting ethical standards to which a parenting coordinator may otherwise be bound.

Rule 15.130. Relationship with Other Professionals

A parenting coordinator shall respect the role of other professional disciplines in the parenting coordination process and shall promote cooperation between parenting coordinators and other professionals.

Rule 15.140. Confidentiality

(a) Preservation of Confidentiality. A parenting coordinator shall maintain confidentiality of all communications made by, between, or among the parties and the parenting coordinator except when disclosure is required or permitted by law or court order. The parenting coordinator shall maintain confidentiality of all records developed or obtained during the parenting coordination process in accordance with law or court order.
(b) Use of Materials for Educational Purposes. A parenting coordinator shall not disclose the identity of the parents, children, or other persons involved in the parenting coordination process when information is used in teaching, writing, consulting, research, and public presentations.
(c) Record Keeping. A parenting coordinator shall maintain privacy in the storage and disposal of records and shall not disclose any identifying information when materials are used for research, training, or statistical compilations.

Rule 15.150. Notice and Initial Session

(a) Notice of Fees. Prior to an initial meeting with the parties in a parenting coordination session, the parenting coordinator shall provide written notice of all fees, costs, methods of payment and collection.
(b) Initial Session. At the initial session a parenting coordinator shall, in person, describe the terms of the Order of Referral, if any, and inform the participants in writing of the following:
(1) the parenting coordination process, the role of the parenting coordinator and the prohibition against dual roles;
(2) parenting coordination is an alternative dispute resolution process wherein a parenting coordinator assists parents in creating or implementing a parenting plan;
(3) the parenting coordinator may provide education and make recommendations to the parties, and, with prior approval of the parents and the court, make non-substantive decisions;
(4) communications made during the parenting coordination session are confidential, except where disclosure is required or permitted by law;
(5) all fees, costs, methods of payment, and collections related to the parenting coordination process;
(6) the court’s role in overseeing the parenting coordination process, including a party’s right to seek court intervention;
(7) the party’s right to seek legal advice; and
(8) the extent to which parties are required to participate in the parenting coordination process.

Rule 15.160. Fees and Costs

A parenting coordinator holds a position of trust. Fees shall be reasonable and be guided by the following general principles:

(a) Changes in Fees, Costs, or Payments. Once services have begun, parenting coordinators shall provide advance written notice of any changes in fees or other charges.
(b) Maintenance of Financial Records. Parenting coordinators shall maintain the records necessary to support charges for services and expenses, and, upon request, shall make an accounting to the parents, their counsel, or the court.
(c) Equitable Service. Parenting coordinators shall provide the same quality of service to all parties regardless of the amount of each party’s financial contribution.
(d) Basis for Charges. Charges for parenting coordination services based on time shall not exceed actual time spent or allocated.
(e) Costs. Charges for costs shall be for those actually incurred.
(f) Expenses. When time or expenses involve two or more parenting coordination processes on the same day or trip, the time and expense charges shall be prorated appropriately.
(g) Written Explanation of Fees. A parenting coordinator shall give the parties and their counsel a written explanation of any fees and costs prior to the parenting coordination process. The explanation shall include the:
(1) basis for and amount of any charges for services to be rendered, including minimum fees and travel time;
(2) amount charged for the postponement or cancellation of parenting coordination sessions and the circumstances under which such charges will be assessed or waived;
(3) basis and amount of charges for any other items; and
(4) parties’ pro rata share of the parenting coordinator’s fees and costs if previously determined by the court or agreed to by the parties.
(h) Maintenance of Records. A parenting coordinator shall maintain records necessary to support charges for services and expenses and, upon request, shall make an accounting to the parties, their counsel, or the court.
(i) Remuneration for Referrals. No commissions, rebates, or similar remuneration shall be given or received by a parenting coordinator for a parenting coordination referral.
(j) Contingency Fees Prohibited. A parenting coordinator shall not charge a contingent fee or base a fee on the outcome of the process.

Rule 15.170. Records

(a) Documentation of Parenting Coordination Process. Parenting coordinators shall maintain all information and documents related to the parenting coordination process.
(b) Record Retention. Parenting coordinators shall maintain confidentiality and comply with applicable law when storing and disposing of parenting coordination records.
(c) Relocation or Closing the Parenting Coordination Practice. A parenting coordinator shall provide public notice of intent to relocate or close his or her practice. The notification shall include instructions on how parties’ may obtain a copy of their records or arrange for their records to be transferred.

Rule 15.180. Safety, Capacity, and Protection

(a) Monitoring. Parenting coordinators shall monitor the process for domestic violence, substance abuse, or mental health issues and take appropriate action to address any safety concerns.
(b) Injunctions for Protection. Parenting coordinators shall honor the terms of all active injunctions for protection and shall not seek to modify the terms of an injunction.
(c) Terminating Process Based on Safety Concerns. Parenting coordinators shall suspend the process and notify the court when the parenting coordinator determines it is unsafe to continue.
(d) Adjournment or Termination. A parenting coordinator shall adjourn or terminate a parenting coordination process if any party is incapable of participating meaningfully in the process.

Rule 15. 190. Education and Training

Parenting coordinators shall comply with any statutory, rule or court requirements relative to qualifications, training, and education.

Rule 15. 200. Responsibility to the Courts

(a) Candid with Referring Court. Parenting coordinators shall be candid, accurate, and responsive to the court concerning the parenting coordinators’ qualifications, availability and other administrative matters.
(b) Providing Information to the Court. When parenting coordinators provide information to the court, parenting coordinators shall do so in a manner that is consistent with court rules and statutes. Parenting coordinators shall notify the referring court when the court orders conflict with the parenting coordinator’s professional ethical responsibilities. Parenting coordinators shall notify the court when it is appropriate to terminate the process. A parenting coordinator shall be candid, accurate, and fully responsive to the court concerning the parenting coordinator’s qualifications, availability, and other administrative matters.

Part II. DISCIPLINE

Rule 15.210. Procedure

Any complaint alleging violations of the Rules For Qualified And Court-Appointed Parenting Coordinators, Part I: STANDARDS, shall be filed with the Dispute Resolution Center which shall be responsible for enforcing these Standards.

ORDER OF REFERRAL TO PARENTING COORDINATOR

The Court considered the ( ) motion of the court, ( ) joint motion of the parties, ( (motion of a party, reviewed the court file, and considered the testimony presented. Based upon this information, the court FINDS that:

A. Appropriateness of Process. This matter is appropriate for parenting coordination and it is in the best interest of the child(ren).

B. Parenting Coordination Process. Parenting coordination is a child-focused alternative dispute resolution process whereby a parenting coordinator assists the parents in creating or implementing ' their parenting plan by facilitating the resolution of disputes, providing education and making recommendations to the parents; and, with the prior consent of the parents and approval of the court, making limited decisions within the scope of this order of referral.

C. Parenting Coordinator. A parenting coordinator is an impartial third person whose role Is to assist the parents in successfully creating or implementing a parenting plan.

D. Selection of Parenting Coordinator. The parenting coordinator was selected by:

[Choose only one]

_ parties' agreement.

_the court.

E. History of Domestic Violence. Based on testimony and evidence presented and a review of related court records, the court has determined:

[Choose all that apply]

_There is no history of domestic violence.

_There has been a history of domestic violence, and:

1. _ Each party has had an opportunity to consult with an attorney or domestic violence advocate before this court has accepted the parties' consent; and

Florida Family Law Rules of Procedure Form 12.984(a), Order of Referral to Parenting Coordinator (07/14)

2._ Each party has consented to this referral and the consent has been given freely and voluntarily.

It is therefore, ORDERED:

1. Parenting Coordinator. The parties are referred to the following parenting coordinator for an initial period of _months:

a. The parenting coordinator shall file a response to this Order within 30 days either accepting or declining the appointment. The response to the appointment must be in substantial compliance with Florida Family Law Rules of Procedure Form 12.984(b).

b. The parties or their attorneys must provide to the parenting coordinator copies of all pleadings and orders related to domestic violence and any other pleadings and orders requested by the parenting coordinator related to parenting coordination.

2. Meetings. Unless prohibited herein as a domestic violence safeguard or by another court order, the parenting coordinator may meet with the parties and/or child(ren) together or separately, in person or by any electronic means.

3. Domestic Violence Safeguards. The parties shall adhere to all provisions of any injunction for protection or conditions of bail, probation, or a sentence arising from criminal proceedings. In addition to any safety measures the parenting coordinator deems necessary, the following domestic violence safeguards must be implemented:

(Choose all that apply]

_None are necessary.

_No joint meetings

_No direct negotiations

_No direct communications

___ Other:_

4. Role, Responsibility, and Authority of Parenting Coordinator. The parenting coordinator shall have the following role, responsibility, and authority:

a. Assisting the parents in creating and implementing a parenting plan.

b. Facilitating the resolution of disputes regarding the creation or implementation of the Parenting Plan.

Florida Family Law Rules of Procedure Form 12.984(a), Order of Referral to Parenting Coordinator (07/14)

c. Recommending to the parents strategies for creating or implementing the Parenting Plan. Such recommendations may include that one or both parents avail themselves of accessible and appropriate community resources, including, but not limited to, random drug screens, parenting classes, and individual psychotherapy or family counseling, if there is a history or evidence that such referrals are appropriate.

d. Recommending to the parents changes to the Parenting Plan.

e. Educating the parties to effectively:

i. Parent in a manner that minimizes conflicts;

ii. Communicate and negotiate with each other and their child(ren);

iii. Develop and apply appropriate parenting skills;

lv. Understand principles of child development and issues facing child(ren) when their parents no longer live together;

v. Disengage from the other parent when engagement leads to conflicts and noncooperation;

vi. Identify the sources of their conflict with each other and work jointly to minimize conflict and lessen its deleterious effects on the child(ren); and,

vii. Allow the child(ren) to grow up free from the threat of being caught in the middle of their parents' disputes.

f. Reporting or communicating with the court concerning nonconfidential matters as provided in paragraph 6 of this Order. In the event the parenting coordinator is unable to adequately perform the duties in accordance with the court's direction, the parenting coordinator shall file a written request for a status conference and the court shall set a timely status hearing. The request for status conference must be in substantial compliance with Florida Family Law Rules of Procedure Form 12.984(d). A report to the court of an emergency pursuant to section 61.125(8), Florida Statutes, must be in substantial compliance with Florida Family Law Rules of Procedure Form 12.984(c).

g. Communicating with the parties and their child(ren), separately or together, in person or by telephone, unless otherwise prohibited by court order or applicable law.

5. Fees and Costs for Parenting Coordination.

[Choose all that apply]

a. _The parties have consented to this referral to parenting coordination.

_This order is without the consent of the parties, but the court has determined that the parties have the financial ability to pay the parenting coordination fees and costs.

b. _The court allocates payment of fees and costs for parenting coordination as follows:

Hourly rate of compensation shall not exceed $_, unless the parties otherwise agree.

_% shall be paid by the Father.

_% shall be paid by the Mother.

Florida Family Law Rules of Procedure Form 12.984(a), Order of Referral to Parenting Coordinator (07/14)

If a party causes the parenting coordinator to expend an unreasonable and unnecessary amount of time, that party may be held solely responsible for payment of the parenting coordinator's fees and costs for such time expended, and the court reserves jurisdiction to reallocate the payment of fees and costs in that event. Failure to pay the parenting coordinator's fees and costs in a timely manner may subject the party to sanctions for contempt of court.

6. Confidentiality. All communications made by, between, or among the parties and the parenting coordinator during parenting coordination sessions are confidential. The parenting coordinator and each party may not testify or offer evidence about communications made by a party or the parenting coordinator during the parenting coordination sessions, except if:

a. Necessary to identify, authenticate, confirm, or deny a written agreement entered into by the parties during parenting coordination.

b. The testimony or evidence is necessary to identify an issue for resolution by the court without otherwise disclosing communications made by any party or the parenting coordinator.

c. The testimony or evidence is limited to the subject of a party's compliance with this Order of Referral to Parenting Coordinator, orders for psychological evaluation, counseling ordered by the court or recommended by a health care provider, or for substance abuse testing or treatment.

d. The parenting coordinator reports that the case is no longer appropriate for parenting coordination.

e. The parenting coordinator reports that he or she is unable or unwilling to continue to serve and that a successor parenting coordinator should be appointed.

f. The testimony or evidence is necessary pursuant to section 61.125(5)(b) or section 61.125(8), Florida Statutes.

g. The parenting coordinator is not qualified to address or resolve certain issues in the case and a more qualified coordinator should be appointed.

h. The parties agree thatthe testimony or evidence be permitted.

i. The testimony or evidence is necessary to protect any person from future acts that would constitute domestic violence under Chapter 741, Florida Statutes; child abuse, neglect, or abandonment under Chapter 39, Florida Statutes; or abuse, neglect, or exploitation of an elderly or disabled adult under Chapter 825, Florida Statutes.

7. Agreement on Nonconfidentiality. The parties can agree to waive confidentiality of a specific communication or all communications. The waiver must be In writing, signed by the parties and their respective counsel. The waiver shall be filed with the court and a copy served on the parenting coordinator. Either party may revoke their waiver of confidentiality by providing written notice signed by that party. The revocation shall be filed with the court and a copy served on the other party and the parenting coordinator.

Florida Family Law Rules of Procedure Form 12.984(a), Order of Referral to Parenting Coordinator (07/14)

8. Scheduling. Each party shall contact the parenting coordinator within 10 days of the date of this Order to schedule the first appointment. The parenting coordinator shall determine the schedule for subsequent appointments.

9. Stipulation. Any written stipulation of parties to utilize the parenting coordination process filed with this court is incorporated into this Order.

ORDERED ON {date}_.

Copies to:

_Petitioner

_Attorney for Petitioner

_Respondent

_Attorney for Respondent

Florida Family Law Rules of Procedure Form 12.984(a), Order of Referral to Parenting Coordinator (07/14)

INSTRUCTIONS FOR FLORIDA FAMILY LAW RULES OF PROCEDURE FORM 12.984(b)

RESPONSE BY PARENTING COORDINATOR (07/14)

When should this form be used?

A person appointed as a parenting coordinator must accept or decline the appointment under Florida Family Law Rule of Procedure 12.742(e). If you accept the appointment, you must complete paragraphs 1(a) and 2 and sign it. If you decline the appointment, you must complete only paragraph 1(b) and sign the form. This form should be typed or printed in black ink.

Important Consideration Before Responding.

A Qualified Parenting Coordinator or other licensed mental health professional under Chapter 490 or 491, Florida Statutes, shall abide by the ethical and other professional standards imposed by his or her licensing authority, certification board, or both, as applicable.

A person who is not a Qualified Parenting Coordinator or a licensed mental health professional under Chapter 490 or 491, Florida Statutes, shall not accept an appointment to serve as parenting coordinator in a matter that presents an apparent or undisclosed conflict of interest. A conflict of interest arises when any relationship between the parenting coordinator and either party compromises or appears to compromise the parenting coordinator’s ability to serve. The burden of disclosure of any potential conflict of interest rests on the parenting coordinator. Disclosure shall be made as soon as practical after the parenting coordinator becomes aware of the potential conflict of interest. If a parenting coordinator makes an appropriate disclosure of a conflict of interest or a potential conflict of interest, he or she may serve if all parties agree. However, if a conflict of interest substantially impairs a parenting coordinator’s ability to serve, the parenting coordinator shall decline the appointment or withdraw regardless of the express agreement of the parties.

A parenting coordinator shall not provide any services to either party that would impair the parenting coordinator’s ability to be neutral.

What should I do next?

After completing and signing this form, you must file the original with the clerk of the circuit court in the county in which the action is pending and keep a copy for your records.

You must mail or hand-deliver a copy of this form to the attorney(s) for the parents or, if not represented by an attorney, to the parents.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. For more information, see section 61.125, Florida Statutes; Florida Family Law Rule of Procedure 12.742; Rules for Qualified and Court Appointed Parenting Coordinators; and the Order of Referral to Parenting Coordinator, Florida Family Law Rules of Procedure Form 12.984(a).

Special notes

Remember, a person who is NOT an attorney is called a nonlawyer. If a non-lawyer helps you fill out these forms, that person must give you a copy of Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

RESPONSE BY PARENTING COORDINATOR

1, {name}_notify the Court and affirm the following:

1. Acceptance.

[Choose only one]

a. _I accept the appointment as parenting coordinator.

b. _I decline the appointment as parenting coordinator.

2. Qualifications.

[Choose only one]

a. _I meet the qualifications in section 61.125(4), Florida Statutes.

b. _I do not meet the qualifications in section 61.125(4), Florida Statutes. However, the parties have chosen me by mutual consent and I believe I can perform the services of a parenting coordinator because:_

3. I am not aware of any conflict, circumstance, or reason that renders me unable to serve as the parenting coordinator in this matter and I will immediately inform the court and the parties if such arises.

4. I understand my role, responsibility, and authority under the Order of Referral to Parenting Coordinator, Florida Family Law Rules of Procedure Form 12.984(a); section 61.125, Florida Statutes; Florida Family Law Rule of Procedure 12.742; and Rules for Qualified and Court Appointed Parenting Coordinators.

Florida Family Law Rules of Procedure Form 12.984(b), Response by Parenting Coordinator (07/14)

I hereby affirm the truth of the statements in this acceptance and understand that if I make any false representations in this acceptance, I am subject to sanctions by the Court.

Florida Family Law Rules of Procedure Form 12.984(b), Response by Parenting Coordinator (07/14)

INSTRUCTIONS FOR FLORIDA FAMILY LAW RULES OF PROCEDURE FORM 12.984(c) PARENTING COORDINATOR REPORT OF AN EMERGENCY (07/14)

When should this form be used?

A person appointed as a parenting coordinator must immediately inform the court of an emergency situation pursuant to section 61.125(8), Florida Statutes. This form is used by the parenting coordinator to report an emergency with or without notice to the parties. It is critical to differentiate whether notice to the parties is required under the facts of any emergency.
Report With Notice. A parenting coordinator, upon information and belief, must immediately inform the court by affidavit or verified report of an emergency in which a party obtains a final order or injunction of protection against domestic violence or is arrested for an act of domestic violence as provided under chapter 741, Florida Statutes.
Report Without Notice. A parenting coordinator must immediately inform the court by affidavit or verified report of an emergency situation if:
1. There is a reasonable cause to suspect that a child will suffer or is suffering abuse, neglect, or abandonment as provided under chapter 39, Florida Statutes;
2. There is a reasonable cause to suspect a vulnerable adult has been or is being abused, neglected, or exploited as provided under chapter 415, Florida Statutes;
3. A party, or someone acting on a party’s behalf, is expected to wrongfully remove or is wrongfully removing the child from the jurisdiction of the court without prior court approval or compliance with the requirements of section 61.13001, Florida Statutes. If the parenting coordinator suspects that the parent has relocated within the state to avoid domestic violence, the coordinator may not disclose the location of the parent and child unless required by court order.

This form should be typed or printed in black ink.

What should I do next?

After completing and signing this form, you must file the original with the clerk of the circuit court in the county in which the action is pending, provide a copy to the presiding judge, and keep a copy for your records.

Report With Notice. If notice to the parties is required under section 61.125(8)(b), Florida Statutes, you must also mail or hand deliver a copy of this form to attorney(s) for the parents or, if not represented by an attorney, to the parents.

Report Without Notice. If notice to the parties is not required, you must mail or hand-deliver a copy of this form to the Judge presiding over the case.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. For more information, see section 61.125, Florida Statutes; Florida Family Law Rule of Procedure 12.742; Rules for Qualified and Court Appointed Parenting Coordinators; and the Order of Referral to Parenting Coordinator, Florida Family Law Rules of Procedure Form 12.984(a).

Special notes

Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

{name of business}_,

{address}_,

{city}_,{state}_,{telephone number}_.

Florida Family Law Rules of Procedure Form 12.984(c), Parenting Coordinator Report of an Emergency (07/14)

INSTRUCTIONS FOR FLORIDA FAMILY LAW RULES OF PROCEDURE FORM 12.984(d) PARENTING COORDINATOR REQUEST FOR STATUS CONFERENCE (07/14)

When should this form be used?

A person appointed as a parenting coordinator may request a status conference with the judge and parties under Florida Family Law Rule of Procedure 12.742(i). This form is used when the parenting coordinator is unable to adequately perform the duties in accordance with the court’s direction.

This form should be typed or printed in black ink.

What should I do next?

After completing and signing this form, you must file the original with the clerk of the circuit court in the county in which the action is pending, provide a copy to the presiding judge, and keep a copy for your records.

You must mail or hand-deliver a copy of this form to the attorney(s) for the parents or, if not represented by an attorney, to the parents.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. For more information, see section 61.125, Florida Statutes; Florida Family Law Rule of Procedure 12.742; Rules for Qualified and Court Appointed Parenting Coordinators; and the Order of Referral to Parenting Coordinator, Florida Family Law Rules of Procedure Form 12.984(a).

Special notes

Remember, a person who is NOT an attorney is called a nonlawyer. If a non-lawyer helps you fill out these forms, that person must give you a copy of Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

      . The ADR Committee was created in 2003 and charged with monitoring court rules governing alternative dispute resolution policies and procedures, and making recommendations as necessary to improve the use of mediation, arbitration, and other forms of alternative dispute resolution to supplement the judicial process. See In re Committee on Alternative Dispute Resolution Rules and Policy, Fla. Admin. Order No. AOSC03-32 (July 8, 2003). Along with its petition in this case, the ADR Committee also submitted its Report and Recommendations Related to Parenting Coordination Training Standards, Procedures and Processes, which included a proposed administrative order, and was considered separately by the Court as an administrative matter.