A.B., APPELLANT,
v.
DEPARTMENT OF CHILDREN & FAMILY SERVICES, APPELLEE
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The Florida District Court of Appeal reversed a judgment terminating parental rights because the trial court allowed two critical witnesses to testify via telephone without the mother's consent or notice, violating Florida Rule of Judicial Administration 2.071 and denying the mother due process.
Yes. The use of telephone testimony from the two witnesses without the mother's consent violated Florida Rule of Judicial Administration 2.071, which requires all parties' consent and advance notice with a showing of good cause. The violation also infringed the mother's due process rights, and the telephone testimony was not harmless error given the critical nature of these witnesses.
[1] Testimony via communication equipment requires the consent of all parties, absent specific statutory exceptions.
[2] Presenting testimony via communication equipment without a party's consent violates due process rights when the testimony is vital to the proceedings.
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Join FLexlaw to unlock all legal intelligence“A county or circuit court judge may, if all the parties consent, allow testimony to be taken through communication equipment.”
Establishes the foundational requirement of Florida Rule of Judicial Administration 2.071 that all parties must consent to remote testimony.
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Join FLexlaw to unlock all legal intelligenceThe Department of Children & Family Services sought to terminate the mother's parental rights. At trial, the Department presented testimony from a tre…
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PER CURIAM.
This is an appeal of a final judgment terminating parental rights. Over the objection of the mother’s counsel, at, trial, the Department presented the testimony of a treating psychiatrist, as well as a former foster parent of the child, via telephone. The psychiatrist testified as to the mother’s perilous psychiatric condition, the foster mother also gave damaging testimony about the mother. We agree with the appellant that without notice or her consent, the telephone testimony of these two vitally important witnesses violated the Florida Rule of Judicial Administration 2.071, which provides in pertinent part:
(d) Testimony.
(1) Generally. A county or circuit court judge may, if all the parties consent, allow testimony to ' be taken through communication equipment.
(2) Procedure. Any party desiring to present testimony through communication equipment shall, prior to the hearing or trial at which the testimony is to be presented, contact all parties to determine whether each party consents to this form of testimony. The party seeking to present the testimony shall move for permission to present testimony through communication equipment, which motion shall set forth good cause as to why the testimony should be allowed in this form.
(4) Confrontation Rights. In juvenile and criminal proceedings the defendant must make an informed waiver of any confrontation rights that may be abridged by the use of communication equipment.
See also Somerville v. Reusser, 649 So. 2d 339(Fla. 5th DCA 1995)(Hearing on former husband’s motion to compel visitation, which was conducted telephonically and only hours after wife was given faxed notice of hearing, did not comply with rules governing proceedings and denied wife due process absent notice to wife and consideration of objections to use of telephone for hearing.)
The Department argues that notwithstanding the error, there was other testimony presented to the trial judge that supports the order of termination and the final judgment. We disagree. Considering the gravamen of the witnesses’ testimony and the nature of the order at issue, permitting the use of the telephone testimony without the mother’s consent, violated the mother’s due process rights.
Reversed and remanded.