IN THE INTEREST OF L.B., M.B., K.B., AND L.B., CHILDREN. K.B., APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES AND GUARDIAN AD LITEM PROGRAM, APPELLEES

Fla. 2d DCA | 2006-06-16
No. 2D05-5450
KELLY and VILLANTI, JJ., Concur.
932 So. 2d 1148 Florida District Court of Appeal, Second District (2006) Positive Treatment
Cited by 1 case

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Synopsis

A Florida appellate court reversed a final judgment terminating a mother's parental rights to her four children because a successor judge improperly entered the judgment after the trial judge (Judge Hunter) had conducted the trial and held his decision in abeyance. The court found the final judgment contained factual findings inconsistent with the oral findings made by the trial judge.


Holding

The court reversed the final judgment as to the mother because it was improperly entered by a successor judge without the parties' stipulation, and because the judgment contained factual findings and conclusions regarding the mother that were inconsistent with the oral findings made by Judge Hunter at the conclusion of the trial.


Headnotes

[1] A successor judge may not enter a judgment when factual matters were tried before a predecessor judge, absent a stipulation by the parties.

[2] It is reversible error for a successor judge to sign a final order when that judge did not preside over the proceedings or hear the testimony and argument presented.

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Key Quotes

“A successor judge who did not hear all the evidence may only enter a judgment upon retrial or on the basis of the prior record when the parties so stipulate.”

Establishes the legal standard that a successor judge cannot enter judgment on matters tried before a predecessor judge without party stipulation or retrial.

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Facts & Procedural History

Judge Michael Hunter conducted a trial in January 2005 on a petition to terminate the mother's parental rights and made various findings but held his …

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Opinion of the Court
SILBERMAN, Judge.

SILBERMAN, Judge.

K.B. (the mother) appeals a final judgment terminating her parental rights as to her four children.1 We reverse because the judgment contains findings that are inconsistent with the oral findings made by the judge who conducted the trial concerning the mother’s parental rights and the judgment was improperly entered by a successor judge.

In January 2005, Judge Michael Hunter conducted a trial on the amended petition for termination of the mother’s parental rights. At the conclusion of the trial, Judge Hunter made various findings but stated that he would hold a final decision in abeyance until the father’s parental rights were determined in a separate proceeding.

In October 2005, Judge Charles Lee Brown conducted a hearing regarding the father’s parental rights. Following that hearing, Judge Brown entered a final judgment making findings as to both parents and terminating their parental rights.

The mother argues, and the Department of Children and Family Services and the Guardian Ad Litem concede, that the final judgment must be reversed as to the mother. First, the final judgment was improperly entered by a successor judge. See Fry v. Fry, 887 So. 2d 438, 440 (Fla. 2d DCA 2004) (holding that in the absence of a stipulation by the parties, a successor judge may not enter a judgment when factual matters were tried before a predecessor judge); S.C. v. Dep’t of Children & Family Servs. (In re N.C.), 834 So. 2d 189, 189 (Fla. 2d DCA 2002) (concluding that it was reversible error for a successor judge to sign a final order of adjudication of dependency because another judge presided over the proceedings and the successor judge did not hear the testimony and argument presented at the hearings); Smith v. Smith, 612 So. 2d 713, 714 (Fla. 2d DCA 1993) (“A successor judge who did not hear all the evidence may only enter a judgment upon retrial or on the basis of the prior record when the parties so stipulate.”).

Second, the judgment contains factual findings and conclusions regarding the mother that are inconsistent with the oral findings that Judge Hunter made at the conclusion of the January 2005 trial. As we observed in In re N.C., “it is unfortu nate that the parties have expended the time and money to appeal this case without first seeking to obtain an order signed by the trial judge, who retains jurisdiction to enter such orders notwithstanding rotation to another circuit court division.” 834 So. 2d at 190.

Accordingly, we reverse the final judgment as to the mother and remand for Judge Hunter to enter a new judgment if he is able to do so. If Judge Hunter is not available to render a judgment, then a de novo hearing will have to be conducted unless the parties stipulate that a successor judge may render a new judgment after reviewing the record. See id.

Reversed and remanded.

KELLY and VILLANTI, JJ., Concur. . The final judgment also terminates the father’s parental rights. He is not a party to this appeal.


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Cited By

  • Nevada Bedwell v. Bedwell (Fla. 2d DCA 2021)
    …Bradford, 182 So. 2d at 449). This is so because the successor judge had no opportunity to hear and observe the witnesses in the act of testifying. Id. We have continued to follow this rule. See, e.g., K.B. v. Dep't of Children & Family Servs., 932 So. 2d 1148, 1149 (Fla. 2d DCA 2006) ("[T]he final judgment was improperly entered by a successor judge."). Our record reflects no stipulation by the parties, and the Former Wife concedes that the successor judge should not have signed the final judgment in pla…

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