S.S. AND M.G., APPELLANTS,
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES, APPELLEE
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Parents S.S. and M.G. appeal the termination of their parental rights, arguing the trial court abused its discretion by denying their motion for continuance after DCF filed untimely discovery including a new expert witness and taped statements. The court reversed and remanded for a new trial, finding the discovery violation caused prejudice to the parents who were unable to prepare a defense to the expert's critical testimony.
The trial court abused its discretion in denying the motion for continuance. Although juvenile procedure rules do not require a Richardson hearing, failure to disclose expert witnesses and opinions prior to trial violates discovery rules and results in reversible error when it causes prejudice to the party unable to prepare a defense or obtain their own expert.
[1] A trial court abuses its discretion by denying a motion for continuance when a party is prejudiced by untimely discovery responses that include new witnesses and expert t…
[2] A party is prejudiced by untimely discovery responses when they are not given sufficient time to prepare for new expert testimony or retain their own expert to refute it.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“failure to adhere to a procedural rule is not reversible error unless violation of the rule resulted in prejudice to the party”
Establishes the standard for evaluating discovery violations in juvenile cases even without Richardson hearings
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Join FLexlaw to unlock all legal intelligenceS.S. and M.G. were parents in a termination of parental rights case. Prior to trial scheduled for August 7, 2000, DCF filed an amended discovery respo…
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HAZOURI, J.
Appellants, M.G. and S.S., appeal from an order terminating their parental rights to their child pursuant to a petition Sled by the Department of Children and Families (DCF). They raise four issues on appeal. Among the issues raised is whether the trial court abused its discretion in not granting appellants’ motions for continuance. We hold that the trial court abused its discretion and reverse and remand for a new trial. As a result, the other points raised are moot and do not require discussion.
Prior to trial, appellants were provided with discovery including a witness list pursuant to their continuing demands for discovery. The trial was set to begin on August 7, 2000. On August 2, 2000, DCF filed an amendment to its discovery response which, in addition to previously undisclosed taped statements of the parties, added several new witnesses including a new expert witness, Dr. Phillip Colaizzo. Counsel for each of the appellants informed the court that they did not receive the amendment until August 4, the Friday before the trial was set to start on Monday.
On the morning of August 7, 2000, when court convened for trial, appellants object ed to the untimely discovery response and moved to strike the added witnesses. Appellants also moved for a continuance. The court granted a recess until 1:30 P.M. to give appellants’ counsel the opportunity to depose Dr. Colaizzo and review the previously undisclosed taped statements. Due to time constraints, appellants’ counsel only briefly spoke with Dr. Colaizzo. Upon returning to court, appellants renewed their motion for continuance arguing that they did not have sufficient time to review the tapes, interview the other witnesses and depose Dr. Colaizzo. The motion was denied.
The trial proceeded with Dr. Colaizzo as DCF’s first witness as an expert on child maltreatment. Although he never examined the child, he testified that the father’s version of how the child accidentally sustained his injuries was inconsistent with the pattern of the burn injuries. Dr. Co-laizzo opined that the injuries had been intentionally inflicted because of what he called the “immersion theory” which he claimed explained the burn pattern on the child’s feet and buttocks. The trial court’s order terminating parental rights relies heavily on the “immersion theory.” Appellants had no prior notice of Dr. Colaizzo or his opinion and were not afforded the opportunity to retain an expert to refute the “immersion theory.”
Under Florida Rule of Juvenile Procedure 8.245(b)(2)(A), the parties are required to disclose upon demand persons known to have information relevant to the proof or defense of the allegations of a termination of parental rights petition. See, e.g., B.M. v. Dep’t. of Children and Families, 711 So. 2d 616 (Fla. 3d DCA 1998). Although the juvenile rules do not provide for a Richardson hearing, J.L. v. Dep’t of Children and Family Servs., 707 So. 2d 342 (Fla. 4th DCA 1997), the third district in B.M. stated that “failure to adhere to a procedural rule is not reversible error unless violation of the rule resulted in prejudice to the party,” citing Richardson v. State, 246 So. 2d 771, 773 (Fla.1971). B.M., 711 So. 2d at 617.
We find that there was prejudice to appellants because they were not given the opportunity to prepare for this testimony or obtain an expert of their own.
REVERSED AND REMANDED.
STEVENSON and GROSS, JJ., concur.
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Authorities Cited
- Richardson v. State, 246 So. 2d 771 (Fla. 1971)
- B.M. v. Dep't of Child. & Families, 711 So. 2d 616 (Fla. 3d DCA 1998)
- Clark v. State, 707 So. 2d 342 (Fla. 2d DCA 1997)