IN THE INTEREST OF C. M. M., A CHILD. JEAN D. MARION HARMON, APPELLANT,
v.
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, APPELLEE
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A Florida appellate court affirmed a trial court's order adjudging a child a dependent and severing parental rights, despite the absence of court hearing transcripts. The court held that the appellant's failure to identify specific issues requiring transcript review meant reversal was not warranted, and the amended dependency order did not improperly restrict the parent's future adoption rights.
The court affirmed the dependency adjudication, holding that reversal is not required merely because transcripts are missing; rather, the appellant must identify a specific issue on appeal that cannot be resolved without access to the missing record. Additionally, the amended order does not purport to affect or restrict the mother's rights to petition for adoption in a subsequent proceeding.
[1] An appellate court cannot consider a case unless the record reveals all evidence and proceedings before the trial court which are material to the resolution of points on…
[2] A new trial may be necessary where essential records are destroyed through no fault of the appellant, and counsel are unable to accurately reconstruct the proceedings and…
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Join FLexlaw to unlock all legal intelligence“An appellate court cannot consider a case unless the record reveals all evidence and proceedings before the trial court which are material to the resolution of points on appeal.”
Establishes the foundational requirement for appellate review that the record must contain all material evidence and proceedings.
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Join FLexlaw to unlock all legal intelligenceC.M.M. was adjudicated a dependent child by circuit court order, which committed the child to the Department of Health and Rehabilitative Services pen…
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SMITH, Acting Chief Judge.
Appeal from an order adjudging C.M.M. a dependent child under Chapter 39, Florida Statutes (1977). The circuit court’s order commits the child to the custody of the Department of Health and Rehabilitative Services pending placement for adoption, and permanently severs the parental rights of the natural parents. Jean D. Marion Harmon, the child’s natural mother and appellant here, contested the dependency adjudication. The natural father initially opposed the adjudication but later withdrew his opposition and is not a party to this appeal.
The record on appeal does not contain transcripts of the hearings leading to the dependency order. The record contains an affidavit of a deputy clerk of the circuit court reciting that the hearings were recorded and the recordings filed, but the recordings have since been lost or erased. In a second affidavit, an assistant state attorney affirms that the proceedings were recorded and further states that he and appellant’s attorney “have attempted a reconstruction of the record, but have been unable to so do.”
Mrs. Harmon urges that we must reverse the adjudication of dependency and remand for a new trial because she cannot present the “substance” of any of the proceedings below for our review without a verbatim transcript. We do not agree. An appellate court cannot consider a case unless the record reveals all evidence and proceedings before the trial court which are material to the resolution of points on appeal. White v. White, 306 So. 2d 608 (Fla. 1st DCA 1975). And a new trial may be necessary where essential records are destroyed through no fault of the appellant, and counsel are unable to accurately reconstruct the proceedings and evidence.1 Van Scoyoc v. York, 173 So. 2d 483 (Fla. 2d DCA 1965), cert. denied, 179 So. 2d 214 (Fla.1965). But it is necessary that appellant raise a question on appeal which we cannot resolve without resort to the missing portion of the record.
Mrs. Harmon raises no issue requiring resort to a transcript of the proceedings. Mrs. Harmon complains only that in the final order the trial judge improperly attempts to prohibit her from petitioning to adopt her child after the dependency adjudication. She states that the trial court affirmatively held that she could petition to adopt her child in the first dependency order; but the court later amended the order to delete that statement. This, she urges, is an attempt to prohibit her from petitioning for adoption. We need not refer to a transcript of the proceedings to determine that there is no error. The amended order does not purport to affect Mrs. Harmon’s rights to petition for adoption in a subsequent proceeding and does not affect whatever rights she may have. Thompson v. Dept. of Health and Rehabilitative Services, 353 So. 2d 197 (Fla. 3d DCA 1977).
The record before us contains substantial competent evidence that the dependency adjudication meets the requirements of Section 39.11, Florida Statutes (1977). The order appealed from is AFFIRMED.
ERVIN and BOOTH, JJ., concur. . Rule 9.200(b)(3), Fla.R.App.P., which took effect after notice of appeal was filed in this case, provides that appellant “may prepare a statement of the evidence or proceedings from the best available means, including his recollection.” The statement is submitted to the trial judge with objections and amendments from appellee to be “settled and approved” and included in the record on appeal.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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In re The Interest of A. Z. v. State, 383 So. 2d 934 (Fla. 5th DCA 1980)…774 (Fla. 2d DCA 1977); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1922); May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953); In the Interest of C. P., 193 So. 2d 33 (Fla. 3d DCA 1966); In the Interest of C. M. M., 364 So. 2d 788 (Fla. 1st DCA 1978); Hill v. Sadler, 186 So. 2d 52 (Fla. 2d DCA 1966); In Re Brown, 246 So. 2d 166 (Fla. 3d DCA 1971). . Some procedural safeguards set out in chapter 39, Florida Statutes (1979), are: (1) The rule of evidence used in civil cases i…
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Green v. State, 412 So. 2d 413 (Fla. 3d DCA 1982)…” were aware of and attended those proceedings. Ultimately, the petition for commitment was granted. As a consequence, the natural mother was permanently deprived of her rights to the child. § 39.41(4), Fla.Stat. (1979); In the Interest of C. M. M., 364 So. 2d 788 (Fla. 1st DCA 1978); Thompson v. Department of Health and Rehabilitative Services, 353 So. 2d 197 (Fla. 3d DCA 1977). The permanent order of commitment was not appealed. The termination order was appended to HRS’ motion to dismiss the amended petit…
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Smith v. Vining, 407 So. 2d 1048 (Fla. 3d DCA 1981)…So. 2d 485 (Fla.3d DCA 1968). We find no material error in the procedure utilized to reconstruct the record following the removal from the clerk of the original exhibits introduced at trial. Harmon v. Department of Health & Rehabilitative Services, 364 So. 2d 788 (Fla. 1st DCA 1978). For these reasons, we reverse the order granting a new trial and remand the cause to the trial court with directions to reinstate the jury’s verdict and enter judgment with interest from the original entry date of the judgment.…
Authorities Cited
- van Scoyoc v. Verdye Umstad York and Charlotte Paget, 173 So. 2d 483 (Fla. 2d DCA 1965)
- White v. White, 306 So. 2d 608 (Fla. 1st DCA 1975)
- Simon v. Freitag, 179 So. 2d 214 (Fla. 1965)
- Trepanier v. State, 179 So. 2d 214 (Fla. 1965)
- Thompson v. Dep't of Health & Rehabilitative Servs., 353 So. 2d 197 (Fla. 3d DCA 1977)