S.A., APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES, APPELLEE

Fla. 3d DCA | 2007-07-25
No. 3D07-597
Before COPE and SUAREZ, JJ. and SCHWARTZ, Senior Judge.
961 So. 2d 1066 Florida District Court of Appeal, Third District (2007) Positive Treatment
Cited by 11 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

S.A. appeals from a trial court's order adjudicating her two children dependent. The appellate court affirms, finding that although the trial court committed procedural errors in allowing testimony by telephone without all parties' consent and in calling an unlisted expert witness, both errors were harmless.


Holding

The court erred in allowing Officer Hogue's telephonic testimony without all parties' consent, as Florida Rule of Judicial Administration 2.530(d)(1) requires all parties to consent to testimony via communication equipment. However, the error was harmless because the trial court would have entered the dependency order by preponderance of evidence based on other evidence. The failure to list Dr. DiThomasso as a witness was cured when the trial court allowed S.A.'s counsel to interview him before he testified, as requested.


Headnotes

[1] A trial court errs by allowing testimony via communication equipment without the consent of all parties.

[2] An error in admitting testimony via communication equipment without consent is harmless if the outcome of the proceeding would remain the same based on other evidence.

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Key Quotes

“Rule of Judicial Administration 2.530(d)(1) states: "A county or circuit court judge may, if all the parties consent, allow testimony to be taken through communication equipment."”

Establishes the legal requirement that all parties must consent to telephonic testimony, which S.A. did not provide.

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Facts & Procedural History

S.A. was observed driving recklessly on a major Tampa roadway, appearing to attempt to cause an accident, with her two children in the car. When stopp…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

S.A. appeals from a decision of the trial court adjudicating her two children dependent. We affirm.

S.A. was observed driving recklessly, i.e., driving into oncoming traffic and making turns across several lanes of traffic, on a major roadway in Tampa, Florida, as though she were trying to cause a serious accident. When stopped by Officer Hogue of the Tampa Police, S.A. stated that she was trying to kill herself.1 The two children were also in the car. S.A. was taken to a local hospital, where she checked herself in for observation but was not immediately allowed to leave. The children were placed in a shelter on July 10, 2006 and thereafter placed in the custody of their father, who lives in Hialeah. S.A. has been hospitalized in the past for mental illness. A petition for dependency was filed on July 17, 2006.

At the adjudicatory trial on November 16, 2006, the Department of Children and Family Services (“DCFS”) moved to allow Officer Hogue to testify telephonically because he was on vacation and the Tampa Police Department refused to fly him to Miami for the trial. S.A., through counsel, objected to Officer Ho-gue’s testifying by telephone. Officer Ho-gue was allowed to testify by telephone, over S.A.’s objection.

Rule of Judicial Administration 2.530(d)(1) states: “A county or circuit court judge may, if all the parties consent, allow testimony to be taken through communication equipment.” (Emphasis added). Communication equipment includes a conference telephone such as was used in this case. Id. R. 2.530(a).

Under the rule, trial testimony can be taken by telephone only if all parties consent. S.A. objected. The objection should have been sustained. The court erred by allowing the officer to appear by telephone.

The next question is whether the error was harmless. We conclude that it was. This was a dependency proceeding decided by a preponderance of the evidence. Even if Officer Hogue had been excluded, we think that by a preponderance, the trial court would have entered the dependency order based on the other evidence in the case.

S.A.’s second issue on appeal is that the trial court allowed Dr. DiThomas-so, a psychologist, to testify at trial as to S.A.’s mental health when he was not listed as a witness. Dr. DiThomasso’s office had recently evaluated S.A. and the two children. He stated that S.A. suffered from major mental illness, provisionally diagnosed as bi-polar disorder. He also testified that S.A. did not understand the severity of her illness and this kept her from obtaining regular psychiatric care. Dr. DiThomasso also stated that without psychiatric treatment, S.A. could have another episode and if the children were with her they would be at risk of harm.

Under the applicable rules, S.A. had the right to be notified in advance of trial that DCFS would be calling Dr. DiThomasso to testify as to the results of the mental examination. See Fla. R. Juv. P. 8.245(b)(2)(A), (E). The trial court recognized that the objection was well taken. Counsel for S.A. indicated that she wanted to interview Dr. DiThomasso for twenty or thirty minutes before Dr. DiThomasso testified. After some discussion about whether to hear Dr. DiThomasso’s testimony the same day, or continue the hearing to a future date, it was agreed to proceed the same day. As requested, counsel for S.A. interviewed Dr. DiThomasso before he testified. Because the court granted the relief requested by S.A.’s counsel, we conclude that the failure to list the witness was cured.

For the above stated reasons, the adjudication of S.A.’s children as dependent is affirmed.

. S.A. later denied she told Officer Hogue that she was trying to kill herself.


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Citator

Cited By

  • M.S. v. Dep't of Child. & Families, 6 So. 3d 102 (Fla. 4th DCA 2009)
    …all the parties consent, allow testimony to be taken through communication equipment.” Although the trial court thought that it should have some discretion under this rale, there is no such discretion. See S.A. v. Dep’t of Children & Family Servs., 961 So. 2d 1066, 1067 (Fla. 3d DCA 2007) (“Under the rule, trial testimony can be taken by telephone only if all parties consent. S.A. objected. The objection should have been sustained. The court erred by allowing the officer to appear by telephone.”). Because the…
  • Cole v. Cole, 86 So. 3d 1175 (Fla. 5th DCA 2012)
    …mony, but the trial court overruled the objection. Because Mother objected to the telephonic testimony, the trial court erred by overruling her objection and allowing step-mom to testify by telephone. See S.A. v. Dep’t of Children and Family Servs., 961 So. 2d 1066, 1067 (Fla. 3d DCA 2007) (“[u]nder ... rule [2.530], trial testimony can be taken by telephone only if all parties consent” because appellant objected “[t]he objection should have been sustained,” and that “[t]he court erred by allowing the officer…
  • Rivero v. State, 121 So. 3d 1175 (Fla. 3d DCA 2013)
    …lephonic testimony over the appellant’s objection and in violation of rule 2.530(d)(1) was harmless due to the existence of other independent evidence which would have supported the trial court’s decision); S.A. v. Dep’t of Children & Family Servs., 961 So. 2d 1066, 1067 (Fla. 3d DCA 2007) (telephonic testimony permitted over mother’s objection in dependency hearing held to be harmless error because even if the telephonic testimony was excluded, there was other evidence supporting the trial court’s ruling); Qu…

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