DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, ET AL., APPELLANTS,
v.
R.S., A CHILD, APPELLEE
PER CURIAM.
The lower court’s action in selecting and ranking three placement options which were not recommended by H.R.S. was in violation of the mandatory dictates of section 39.09(3)(e), Florida Statutes (1985). See J.S.M. v. State, 505 So. 2d 583 (Fla.2d DCA 1987); A.H. v. State, 499 So. 2d 27 (Fla.2d DCA 1986); Department of Health and Rehabilitative Services v. Margain, 495 So. 2d 241 (Fla. 5th DCA 1986); In re Interest of L.B., 493 So. 2d 554 (Fla. 5th DCA 1986); T.D. v. State, 486 So. 2d 40 (Fla.2d DCA 1986); T.A.W. v. State, 455 So. 2d 582 (Fla. 5th DCA 1984); R.S. v. State, 414 So. 2d 660 (Fla. 1st DCA 1982); W.Y v. State, 414 So. 2d 659 (Fla. 1st DCA 1982); L.J.N. v. State, 411 So. 2d 1349 (Fla. 1st DCA 1982). See also In re Interest of K.A.B., 483 So. 2d 898 (Fla. 5th DCA 1986).
This case is reversed and remanded for entry of a commitment order in compliance with section 39.09(3)(e), Florida Statutes (1985).
REVERSED AND REMANDED. UPCHURCH, C.J., and SHARP, J., concur. COWART, J., concurs specially with opinion.
COWART, Judge,
concurring specially.
Section 39.09(3)(e), Florida Statutes (1985), which relegates juvenile judges to merely making a recommendation by ranking H.R.S. program options, is an exceedingly frustrating limitation on a conscientious judge who may believe that the alternatives listed by H.R.S. do not include an available program that is in the best interests of the child. The legislature should either give the juvenile judge’s decision judicial authority or take him completely out of that decision-making process. The present statute places apparent responsibility on the judge for making a decision but does not give him the authority to effectuate his best judgment. The judicial function does not include the making of “recommendations” to the executive branch of government and is degraded and frustrated by this statute which serves little or no meaningful function.
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Dep't of Health & Rehabilitative Servs. v. R.W.K., 556 So. 2d 815 (Fla. 5th DCA 1990)…9); D.M., Jr. v. State, 539 So. 2d 579 (Fla. 5th DCA 1989); N.L.J. v. Komanski, 527 So. 2d 840 (Fla. 5th DCA 1988); H.R.S. v. State, [*816] 516 So. 2d 1094 (Fla. 5th DCA 1987); H.R.S. v. McGregor, 511 So. 2d 1096 (Fla. 5th DCA 1987); H.R.S. v. R.S., 511 So. 2d 434 (Fla. 5th DCA 1987); In re K.J.M., 495 So. 2d 241 (Fla. 5th DCA 1986); In re L.B., 493 So. 2d 554 (Fla. 5th DCA 1986); T.A.W. v. State, 455 So. 2d 582 (Fla. 5th DCA 1984). CONDITION STRICKEN and CAUSE REMANDED. DANIEL, C.J., and SHARP, W„ J„ concu…
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N.L.J. v. Hon. Walter Komanski, 527 So. 2d 840 (Fla. 5th DCA 1988)…satisfactory to him. He believes that the department misunderstood the law when selecting the options. We also note with approval the concern expressed in Judge Cowart’s concurring opinion in Department of Health and Rehabilitative Services v. R.S., 511 So. 2d 434, 435 (Fla. 5th DCA 1987) that: Section 39.09(3)(e), Florida Statutes (1985), which relegates juvenile judges to merely making a recommendation by ranking H.R.S. program options, is an exceedingly frustrating limitation on a conscientious judge who…
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D.M., JR. v. State, 539 So. 2d 579 (Fla. 5th DCA 1989)…a court order. . See N.L.J. v. Komanski, 527 So. 2d 840 (Fla. 5th DCA 1988); State of Florida, Dep't of Health and Rehabilitative Services v. McGregor, 511 So. 2d 1096 (Fla. 5th DCA 1987); and Dep't of Health and Rehabilitative Services v. R.S., 511 So. 2d 434 (Fla. 5th DCA 1987) (J. Cowart, concurring specially).…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In the Interest of K.A.B. v. Hyson, 483 So. 2d 898 (Fla. 5th DCA 1986)
- L. J. N. v. State, 411 So. 2d 1349 (Fla. 1st DCA 1982)
- W. Y. v. State, 414 So. 2d 659 (Fla. 1st DCA 1982)
- T.D. v. State, 486 So. 2d 40 (Fla. 2d DCA 1986)
- In re the Interest of L.B. v. Alberta McHELLEN, 493 So. 2d 554 (Fla. 5th DCA 1986)
- Lovette v. State, 495 So. 2d 241 (Fla. 5th DCA 1986)
- T.A.W. v. State, 455 So. 2d 582 (Fla. 5th DCA 1984)
- J.S.M. v. State, 505 So. 2d 583 (Fla. 2d DCA 1987)
- A.H. v. State, 499 So. 2d 27 (Fla. 2d DCA 1986)
- R. S. v. State, 414 So. 2d 660 (Fla. 1st DCA 1982)