C.J., APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, AND THE GUARDIAN AD LITEM PROGRAM, APPELLEES
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C.J. appeals the termination of his parental rights to his daughter T.I.J. following the death of his infant son from blunt head trauma. The court affirms the termination, rejecting C.J.'s claims that the trial court abused its discretion by denying a continuance pending his criminal murder trial and by admitting hearsay evidence.
The trial court did not abuse its discretion in denying the continuance because the best interest of the child requires permanent placement at the earliest possible time, and murder cases can take one to three years to reach trial. Any error in admitting hearsay evidence was harmless because the critical medical testimony was also provided by a live, cross-examinable witness whose testimony was overwhelming.
[1] The decision to grant or deny a continuance is within the sound discretion of the trial court and will be reversed only upon a showing of an abuse of that discretion.
[2] In determining whether to grant a continuance in a parental rights termination case, the trial court must consider the best interest of the child, which ordinarily requir…
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Establishes the standard of review for continuance decisions and what is required to overturn them.
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Join FLexlaw to unlock all legal intelligenceC.J.'s infant son, C.J., Jr., suffered an unexplained skull fracture in October 1998 and was declared brain dead shortly thereafter. His daughter T.I.…
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SORONDO, J.
C.J. appeals to this court the lower court’s Final Judgment terminating his parental rights as to his minor child, T.I.J.
C.J. is the father of the minor child, T.I.J., born on May 19, 1997. In October 1998, a Detention Petition was filed by the Department of Children and Families (DCF), alleging that the minor child, C.J., Jr., age two months, received an unexplained skull fracture which placed both C.J., Jr. and T.I.J. at risk of death or bodily injury. A Custody Release Order was entered, placing T.I.J. with her cousins.
On October 19, 1998, affidavits were filed by two physicians stating that C.J., Jr. was brain dead. On the same day, an Order was entered finding C.J., Jr. to be brain dead. The child’s life support was removed and his body was released to the medical examiner. The mother and maternal grandmother were given supervised visitation with T.I.J., and the father was not permitted any contact. In January 1999, a Case Plan was filed by the DCF and accepted by the court, with a goal of terminating the father’s parental rights.
In February 1999, DCF filed a Petition for Termination of Parental Rights (TPR) as to the mother and the father. In March of 1999, a detention petition was filed by DCF pertaining to T.I.J. because her cousins could no longer care for her. On March 15, 1999, a Detention Order was entered placing T.I.J. in shelter. Thereafter a custody release order was entered placing T.I.J. in temporary custody of her maternal grandmother. In June 1999, the father filed an Emergency Motion for Continuance of the TPR trial until the father’s criminal trial for the murder of C.J., Jr., was tried. An Order was entered on June 23, 1999, denying the father’s motion for continuance. On the same day, the father filed an Emergency Petition for Writ of Common Law Certio-rari with this Court, seeking to quash the order of the trial court and directing that comb to continue the TPR trial. This Court entered an order on June 24, 1999, denying the father’s petition.
The TPR trial was held on June 24th and 25th, 1999. At the commencement of the trial, the father renewed his motion for stay of the proceedings pending the outcome of his criminal trial on murder charges. The trial court denied the motion.
After the close of the Department’s case, the father’s attorney made a Motion to Dismiss, which was denied. In the father’s case in chief, the father’s attorney proffered that he would like to put his client on the stand to testify, but because he had been indicted on charges of first degree murder and child abuse, he could not testify. The father’s attorney stated that the father would like to speak on his own behalf and tell the court how much he loved T.I.J., that he did not want his parental rights terminated, and that he wished to invoke his right to remain silent.
At the close of the evidence, the trial court terminated the parental rights of the father as to the minor child, T.I.J. An order was entered on August 23, 1999, denying the TPR petition as to the mother and finding the child to be dependent. On the same day an Order was entered terminating the father’s parental rights. This appeal followed.
The father raises several claims of error; we find only two worthy of discussion. The first claim is that the trial court abused its discretion by denying his motion for continuance of the final hearing on the TPR petition until such time as his criminal charges for the murder of his younger child, C.J., Jr., were adjudicated. His second claim is that the trial judge erred in finding that the Guardian Ad Li-tem (GAL) recommended termination of the father’s parental rights, when the GAL did not testify at the hearing, and in admitting the deposition testimony of the medical examiner, whom he could not cross-examine. We address each argument in turn.
“The decision to grant or deny a continuance is within the sound discretion of the trial court.” Gore v. State, 599 So. 2d 978, 984 (Fla.1992); Scott v. State, 717 So. 2d 908, 911 (Fla.), cert. denied, 525 U.S. 972, 119 S.Ct. 425, 142 L.Ed.2d 346 (1998). Such a decision will be reversed only upon a showing of an abuse of that discretion. Id. See also D.B. v. Department of Children & Families, 742 So. 2d 275, 277 (Fla. 1st DCA 1998); Fredrick v. State Dep’t of HRS, 523 So. 2d 1164, 1167 (Fla. 5th DCA 1988). In determining whether a continuance should be granted under the circumstances presented by this case, the trial. court must consider two primary concerns. First and foremost is the best interest of the child, which ordi narily requires a permanent placement at the earliest possible time. See §§ 39.808-.810, Fla. Stat. (Supp.1998). The second consideration is affording fairness to the parents involved.
In this case, the father is charged with the first degree murder of another child. Depending on the complexity of the issues and whether the death penalty is involved, this type of case can take anywhere from one to three years to be trial ready. Absent exceptional circumstances, it would be unreasonable to postpone a determination on the termination of parental rights issue for such an excessive period of time. Accordingly, we cannot conclude that the trial court abused its discretion in denying the requested continuance. Although C.J. had a trial date for his murder case, trial dates in such cases are often meaningless. Counsel made no representation that the case was certain to be tried on that day and all indications were to the contrary.1 Moreover, T.I.J. had been taken from her parents eight months earlier and was in desperate need of permanent placement.
We agree with the father that the trial judge erred in making findings based on the GAL’s report and the deposition of the medical examiner, as these were hearsay. Nevertheless, we find these errors to be harmless. See King v. State, Dep’t of HRS, 601 So. 2d 1343 (Fla. 3d DCA 1992); Fredrick, 523 So. 2d at 1167. The GAL’s report was cumulative and the critical elements of the medical examiner’s deposition testimony were also testified to by Dr. Walter Lambert, the medical director of the Child Protection Team. Both sides stipulated to Dr. Lambert’s expertise in the field of child abuse. He was present in the courtroom and subject to cross examination. Most significantly, Dr. Lambert testified that he reviewed the medical records from Baptist Hospital,2 and that the child died as a result of blunt trauma to the head. He characterized the blow to the head as very significant and added that the medical literature on falls reflects that the injuries suffered by C.J., Jr. would have had to come from a fall of above forty-five feet. In conjunction with the other evidence presented, including the father’s several, inconsistent explanations of how the child was injured, the evidence presented was overwhelming.
Affirmed.
. We can conceive of. situations where a brief delay might be perfectly reasonable. For example, where a parent charged with a crime advises the trial judge that he or she has filed a demand for speedy trial in his or her criminal case and would therefore have to be tried on those charges within sixty days — a first request for a brief continuance to accommodate that schedule might be warranted.
. These records were admitted into evidence without objection.
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Cited By (11 total)
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O.S. v. Dep't OF Child. & Families, 821 So. 2d 1145 (Fla. 4th DCA 2002)…al of her request for a continuance was error. However, the decision to grant or deny a motion for continuance is within the trial court’s discretion and will not be disturbed absent an abuse of discretion. See C.J. v. Dep’t. of Children & Families, 756 So. 2d 1108, 1109 (Fla. 3d DCA 2000). No abuse of discretion has been shown in this case. The mother disputes the trial court’s determination that she committed perjury in claiming she never hit her daughter with a belt. That statement was merely a finding that…
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A.C. v. Dep't of Child. & Families, 798 So. 2d 32 (Fla. 4th DCA 2001)…nvoke her Fifth Amendment privilege at the TPR trial and could not present a viable defense because of her pending aggravated child abuse criminal charge. The third district recently addressed this issue in C.J. v. Department of Children & Families, 756 So. 2d 1108 (Fla. 3d DCA 2000), and determined that the trial court must exercise discretion in balancing the child’s interest in permanent placement at the earliest possible time with affording fairness to the parents. Concluding that a criminal case may take…
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In the Interest of T.B. v. Dep't of Child. & Fam. Servs., 920 So. 2d 170 (Fla. 2d DCA 2006)
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gore v. State, 599 So. 2d 978 (Fla. 1992)
- Scott v. State, 717 So. 2d 908 (Fla. 1998)
- Fredrick v. State, 523 So. 2d 1164 (Fla. 5th DCA 1988)
- D.B. v. Dept. OF Children AND Families, 742 So. 2d 275 (Fla. 1st DCA 1998)
- King v. State, 601 So. 2d 1343 (Fla. 3d DCA 1992)
- Rosenthal v. Banks, 525 U.S. 972 (U.S. 1998)