In Re: Amendments To The Florida Rules Of Juvenile Procedure
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Supreme Court of Florida
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No. SC05-1303
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IN RE: AMENDMENTS TO THE FLORIDA RULES OF JUVENILE
PROCEDURE.
[March 15, 2007]
PER CURIAM.
In November 2005, the Court, on petition by the Juvenile Court Rules
Committee, adopted a number of amendments to the Florida Rules of Juvenile
Procedure in response to then recent legislation. See In re Amend. to Fla. Rules of
Juv. Pro., 915 So. 2d 592 (Fla. 2005). Upon considering the proposals and
reviewing the relevant legislation, the Court adopted the amendments as proposed
and allowed interested persons to file comments within sixty days after the Court’s
opinion. Id. at 592. 1
One of the amendments adopted by the Court was new rule 8.355, entitled
Administration of Psychotropic Medication to a Child in Shelter Care or in Foster
Care When Parental Consent Has Not Been Obtained. New rule 8.355 provides
1. We have jurisdiction. See art. V, § 2(a), Fla. Const.
procedures to implement section 39.407(3), Florida Statutes (2006), which was
created by chapter 2005-65, section 2, Laws of Florida. Section 39.407(3) requires
court authorization for the administration of psychotropic medication to children in
shelter or foster care when parental consent cannot be obtained. The new rule sets
forth procedures governing a motion by the Department of Children and Families
and a court order for administration of psychotropic medication, as required by
section 39.407(3)(c). It also creates procedures for emergency situations such as
when a delay in authorization could cause significant harm or when the child has
been placed in a psychiatric facility on an emergency basis.
The Children’s Advocacy Foundation, Inc., the University of Miami School
of Law Children and Youth Law Clinic, Florida’s Children First, Jacksonville Area
Legal Aid, University of Miami Law Professor Bruce J. Winick, and Dr. Lester P.
Hartswick, M.D. 2 filed comments with regard to new rule 8.355. No comments
were received with regard to any of the other amendments.
After consideration of the comments received with regard to rule 8.355, the
Court directed that this case be set for oral argument, and an order was issued
specifically inviting additional comments from the Guardian Ad Litem Program
2. The University of Miami School of Law Children and Youth Law Clinic,
Florida’s Children First, Jacksonville Area Legal Aid, University of Miami Law
Professor Bruce J. Winick, and Dr. Lester P. Hartswick, M.D. filed a joint
comment, which was also subsequently joined by the Advocacy Center for Persons
With Disabilities, Inc.
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and the Florida Department of Children and Families. The Court also requested
that the Juvenile Court Rules Committee file a response to all comments filed with
the Court. Oral argument was heard in this matter on October 30, 2006.
The main issue raised by the comments and at oral argument is whether rule
8.355 should be amended to require the appointment of a guardian ad litem and an
attorney ad litem to represent the child in proceedings under the rule. The
comments contend that requiring such representation is necessary to ensure that the
court’s decision to authorize the administration of psychotropic medication is
informed by accurate and up-to-date information about the health status and needs
of the child. Further, they raise the concern that without representation, it may be
impossible for a child to meaningfully voice objections to the prescribed treatment
and participate in a hearing as provided in the statute.
The Court shares the concerns expressed in these comments. Before
authorizing the administration of psychotropic medication to children in the care
and custody of the State, it is essential that a court have access to the information
necessary to make an informed decision. Additionally, it is important that the child
be afforded the opportunity for meaningful, age-appropriate participation in the
process. Section 39.407(3) provides the right of any party to object to a motion for
court approval of administration of psychotropic medication within two working
days of being notified of the motion. If such an objection is filed, the court must
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hold a hearing on the motion. However, without representation, it is unlikely that
the most interested party, the child to whom the medication is to be given, would
be able to exercise the right to object to the motion, much less meaningfully
participate in a hearing.
Although we agree that in many cases, representation of the child is essential
in these proceedings, we decline to insert a requirement for such representation
into rule 8.355 for several reasons. First, in the interest of ensuring that the
decision to medicate a child is fully informed, section 39.407(3) imposes detailed
requirements upon the Department of Children and Families. The statute mandates
that at the time the department seeks a medical evaluation to determine the need
for psychotropic medication for a child, it must provide to the evaluating physician
all pertinent medical information known to the department concerning that child.
§ 39.407(3)(a)(2), Fla. Stat. (2006). If a motion is ultimately filed seeking court
approval to administer the medication—which will only occur if parental consent
cannot be obtained—the motion must be supported by the prescribing physician’s
signed medical report, which must include a “statement indicating that the
physician has reviewed all medical information concerning the child which has
been provided.” § 39.407(3)(c)(2), Fla. Stat. (2006). The statute also requires that
the prescribing physician’s medical report include: (1) the name and dosage range
of the medication; (2) a statement that there is a need for the prescribed medication
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based upon the child’s diagnosed medical condition; (3) a statement that the
prescribed medication is appropriate for treatment of the child’s diagnosed medical
condition and the behaviors and symptoms the medication is expected to address;
(4) an explanation of the nature and purpose of the treatment, the risks, side effects,
and contraindications of the medication, drug interaction precautions, possible
effects of discontinuing the medication, and how treatment will be monitored; (5) a
statement that the aforementioned explanation was provided to the child, if ageappropriate, and to the child’s caregiver; (6) documentation addressing whether the
medication will replace or supplement other currently prescribed medications or
treatments; (7) documentation addressing the length of time the child is expected to
take the medication; and (8) documentation addressing “any additional medical,
mental health, behavioral, counseling, or other services that the prescribing
physician recommends.” § 39.407(3)(c)(1)-(5), Fla. Stat. (2006).
Further, at any hearing held on a motion for court authorization to administer
psychotropic medication, the court must ask the department “whether additional
medical, mental health, behavioral, counseling, or other services are being
provided to the child by the department which the prescribing physician considers
to be necessary or beneficial . . . and which the physician recommends or expects
to provide to the child in concert with the medication.” § 39.407(3)(d)(1), Fla.
Stat. (2006); see also Fla. R. Juv. P. 8.355(b)(2)(B). The court is also authorized to
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order additional medical consultation and to require the department to obtain a
second opinion. § 39.407(3)(d)(1), Fla. Stat. (2006); see also Fla. R. Juv. P.
8.355(b)(1). Through all of the above provisions, the statutory language and the
rule attempt to ensure that the court’s ruling on the motion for court authorization
to administer the medication is based upon the most complete medical information
that is available.
Second, the Legislature has declared its intent and goal that all dependent
children “have a guardian ad litem appointed to represent, within reason, their best
interests, and where appropriate, an attorney ad litem appointed to represent their
legal interests.” § 39.4085(20), Fla. Stat. (2006). By statute, a guardian ad litem
must be appointed by the court “at the earliest possible time . . . in any child abuse,
abandonment, or neglect judicial proceeding.” § 39.822(1), Fla. Stat. (2006).
Additionally, at every shelter hearing, often the first point at which a child who has
been taken into custody by the department comes into contact with the court
system, the court is required to “[a]ppoint a guardian ad litem to represent the best
interest of the child, unless the court finds that such representation is unnecessary.”
§ 39.402(8)(c)(1), Fla. Stat. (2006). 3 Accordingly, it would appear that in most
3. The guardian ad litem must be a responsible adult, who may or may not
be an attorney, or a certified guardian ad litem program. The guardian ad litem is
charged with gathering information concerning matters arising in the case and
filing a written report, including “a summary of the guardian ad litem’s findings, a
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cases, children in the custody and care of the department should already have
representation in the form of a guardian ad litem.
Moreover, at any stage of a dependency proceeding, including the filing of a
motion for court authorization to administer psychotropic medication, the court is
authorized under rule 8.215 to appoint a guardian ad litem and, in fact, is required
to “ascertain at each stage of the proceeding whether a guardian ad litem should be
appointed if one has not yet been appointed.” Fla. R. Juv. P. 8.215(b). Similarly,
under Florida Rule of Juvenile Procedure 8.217, the court, at any stage of a
dependency proceeding, “may consider whether an attorney ad litem is necessary
to represent any child alleged to be dependent, if one has not already been
appointed.” Fla. R. Juv. P. 8.217(a). Under these provisions, if the department
were to file a motion for court authorization to administer psychotropic medication
to a child not already represented by a guardian ad litem or attorney ad litem, the
court would have the discretion to appoint such representation for the child. Given
the reality that Florida is still working toward full funding to meet the legislative
goal that all dependent children be represented by a guardian ad litem and, where
appropriate, an attorney ad litem, we conclude that discretion to appoint such
representation for a child in the limited context of proceedings for court
authorization of administration of psychotropic medication should remain with the
statement of the wishes of the child, and the recommendations of the guardian ad
litem.” Fla. R. Juv. P. 8.215(c)(1).
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trial court, to be exercised on a case-by-case basis. Accordingly, we decline to
amend the language of the rule to eliminate that discretion.
In its comments and arguments, the Guardian Ad Litem Program has
suggested two additional amendments to rule 8.355 that bear discussion. The
program first suggests that the rule be amended to require the presence of the child
at a hearing on a motion for court authorization to administer psychotropic
medication to the child. As for this suggestion, while we decline to amend the rule
to require the presence of the child in all cases, we note that nothing in the statute
or current rule precludes the presence of the subject child at the hearing.
Additionally, as discussed above, we recognize the importance of affording the
child the opportunity for meaningful, age-appropriate participation in the process,
and we encourage courts to allow the presence and participation of the child where
appropriate.
The Program also suggests that the rule be amended to clarify that a party
may still file an objection to psychotropic medication even after a court, on the
department’s motion, authorizes the administration of the medication. Section
39.407(3)(d)(1) states that “[i]f any party objects to the department’s motion, that
party shall file the objection within 2 working days after being notified of the
department’s motion.” § 39.407(3)(d)(1), Fla. Stat. (2006). If an objection is filed,
the court must hold a hearing “as soon as possible before authorizing the
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department to initially provide or to continue providing psychotropic medication to
a child in the legal custody of the department.” Id. Thus, while the provisions of
the statute would permit a court, in the absence of a timely objection, to authorize
the administration of psychotropic medication without a hearing, and the rule as
adopted so provides, 4 nothing in the statute expressly precludes a party from filing
an objection after the two-day time limit has passed and having that objection
addressed by the court at a hearing. Certainly, changed circumstances or
subsequent medical or psychiatric evaluations could warrant discontinuation of, or
a change in, medication for the child. The statute clearly does not preclude the
court from entertaining such an objection, and we encourage vigilance on the part
of the courts in attending to these matters.
In conclusion, for the reasons explained above, we decline to amend rule
8.355, Administration of Psychotropic Medication to a Child in Shelter Care or in
Foster Care When Parental Consent Has Not Been Obtained, as suggested in the
comments provided by interested parties in this matter. We also wish to express
our sincere appreciation for the hard work and vigilance of the Juvenile Court
Rules Committee in addressing the matters presented herein and thank all those
participating in this process in the interest of Florida’s children.
It is so ordered.
4. See Fla. R. Juv. P. 8.355(b)(1).
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LEWIS, C.J., and WELLS, QUINCE, CANTERO, and BELL, JJ., concur.
ANSTEAD, J., concurs in part and dissents in part with an opinion, in which
PARIENTE, J., concurs.
PARIENTE, J., concurs in part and dissents in part with an opinion, in which
ANSTEAD, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
ANSTEAD, J., concurring in part and dissenting in part.
While I generally concur in the observations of the majority, I cannot agree
that the need for the appointment of either a guardian ad litem or attorney ad litem
should not be mandated at the time the Department of Children and Families seeks
to have psychotropic medication administered to a child in its custody. It is
apparent that in seeking the administration of such medications the Department has
identified a child that has serious medical and mental health issues, and, in turn, a
child that has a special and priority need for the services of a guardian or attorney
ad litem to make certain that the child’s interests are given particularized attention.
This Court has not been reluctant to recognize the special needs of children with
mental health issues and we should not hesitate to recognize those needs here. Cf.
M.W. v. Davis, 756 So. 2d 90 (Fla. 2000) (mandating meaningful opportunity to be
heard for child before placement in mental health facility).
Although I sympathize with the majority’s concerns about the use of limited
resources, it seems apparent that some form of prioritization is necessary and
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already in place in the system for allocation of guardian resources. However, the
existing method for allocating such resources is largely haphazard and varies from
location to location despite the commendable efforts of the GAL program to bring
about uniformity. By identifying a class of children with serious medical or mental
health issues as particularly in need of guardian services we would be helping
rather than hindering the present system.
PARIENTE, J., concurs.
PARIENTE, J., concurring in part and dissenting in part.
Even in the absence of a specific rule requirement, I urge all trial judges to
ensure that children have the necessary representation and an opportunity to be
heard in court before making critical decisions regarding the administration of
psychotherapeutic (psychotropic) medication.5 The Legislature’s 2005 enactment
5. In general terms, psychotropic medication is “any medication capable of
affecting the mind, emotions, and behavior.” Kate O’Leary, An Advocate’s Guide
to the Use of Psychotropic Medications in Children and Adolescents 25 ABA
Child L. Prac. 85, 85 (Aug. 2006). The seven most common psychotic disorders
are schizophrenia, bipolar disorder, depression, psychotic depression, attention
deficit/hyperactivity disorder, anxiety, obsessive compulsive disorder, and panic
disorder. Id. There is no definition of psychotropic medication in chapter 39,
Florida Statutes. But see § 916.12(5), Fla. Stat. (2006) (defining “psychotropic
medication” as “any drug or compound used to treat mental or emotional disorders
affecting the mind, behavior, intellectual functions, perception, moods, or emotions
and includes antipsychotic, antidepressant, antimanic, and antianxiety drugs”); §
1006.0625, Fla. Stat. (2006) (defining “psychotropic medication” as “a prescription
medication that is used for the treatment of mental disorders and includes, without
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of the provisions in section 39.407(3), Florida Statutes (2006), reflects a
widespread concern about the appropriate administration of psychotropic
medication to children in foster care. 6 The legislation also reflects the view that
psychotropic medication should only be administered on an individual basis, with
proper monitoring, and in combination with other behavioral health services.
Although the Department of Children and Families (DCF) reported a slight
percentage decline in the use of psychotropic medication by children of all age
groups in DCF’s care between September-November 2004 and SeptemberNovember 2005, almost twelve percent of the children in DCF’s care received one
or more of these medications. 7 In addition, DCF noted that the number of children
ages thirteen through seventeen receiving psychotropic medication increased
limitation, antihypnotics, antipsychotics, antidepressants, anxiety agents, sedatives,
psychomotor stimulants, and mood stabilizers”).
6. Frank M. Platt, Fla. Dep’t of Children and Families, Report Mandated by
Chapter 2005-65 of the Laws of Florida, Section 5 Mental Health Services for
Minors and Incapacitated Persons (Psychotherapeutic Medications) 1 (2006).
7. Florida Department of Children and Families, Report to the Senate
Committee on Children and Families: Ensuring Appropriate and Informed Use of
Psychotherapeutic Medications for Florida’s Children in DCF Care and Custody 1
(2006). DCF also reported that “[a]n estimated 40 percent of the child welfare
population meet criteria for serious emotional disturbance (SED) compared to 10
percent of children in the general population.” Id. The report does not define SED
or discuss the reason for the disparity between the number of children who meet
the criteria for SED and the number of children receiving psychotropic
medications. Hopefully, the children with SED are receiving other services and
therapies to address these serious emotional issues.
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during this period, particularly among those in “licensed substitute care” and “outof-home care.” 8 These numbers are startling, with 44.7 percent of those children
in “licensed substitute care” (up from 32.7 percent) and 32 percent of those
children in “out-of-home care” (up from 26.4 percent) receiving one or more
psychotropic medications. 9
The statute requires DCF to follow detailed procedures before administering
these medications. See § 39.407(3), Fla. Stat. Among these procedures is the right
of any party to object to administration of psychotropic medication. See §
39.407(3)(d)(1), Fla. Stat. (2006). I therefore agree with Justice Anstead that the
rule should at the very least mandate that a Guardian Ad Litem (GAL) or Attorney
Ad Litem (AAL) be appointed for any child who may be administered
psychotropic medication to ensure that the child has a meaningful opportunity to
be heard before such a significant decision. 10 A rule providing for the appointment
of a GAL or AAL would do no more than effectuate the right to be heard granted
by the statute.
By pointing to other statutory provisions and our existing rules that provide
trial courts with authority to appoint GALs and AALs for children, the majority
8. Id. at 4.
9. Id.
10. I would follow the recommendations of the various child advocacy
groups that recommend both an appointed GAL and AAL.
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assumes that many of these children already have representation. Unfortunately,
we were unable to obtain statistics showing the exact number of children who are
unrepresented at the point DCF seeks approval for the administration of
psychotropic medication. This case highlights the need for a uniform statewide
system that tracks all children in the foster care system, includes this type of detail,
and ensures that this information is made available to the courts. 11 While DCF and
the judicial system have been working together to ensure appropriate case
management, much remains to be done.
This case also highlights the compelling need for full legislative funding of
the statutory mandate requiring a guardian ad litem for each child in foster care.
As of August 2006, there were 43,765 children under DCF supervision and
involved in court proceedings. See Guardian Ad Litem 2006 Annual Report 3.
The Statewide GAL Office represented 28,179 of those children, and its goal by
December 2006 was to represent 32,787 children. See id. This target, when met,
means that the Statewide GAL Office will be providing representation in
11. HomeSafeNet is a statewide database created by DCF. DCF’s October
2006 report states that “enhancements” have been made “to include information on
medication use and thereby provide the ability to more intensively monitor use of
psychotherapeutic medications in Florida’s child welfare system” in real time.
Report to the Senate Committee on Children and Families, supra note 7, at 5.
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approximately 75% of these cases. 12 Clearly, children DCF has identified as
requiring psychotropic medication should be among those who not only receive
GAL representation but also receive representation through an attorney
knowledgeable about these issues.
As the majority points out, it is the intent of the Legislature that all
dependent children have a “guardian ad litem appointed to represent, within
reason, their best interests, and where appropriate, an attorney ad litem appointed
to represent their legal interests.” § 39.4085(20), Fla. Stat. (2006). I acknowledge
that the legislative and executive branches have made enormous strides in the past
several years in increasing funding to the Statewide GAL Office. 13 I urge that this
year, the State fulfill this statutory mandate by fully funding the GAL Office so
that each child has, at a minimum, guardian ad litem representation, and attorney
ad litem representation where necessary. 14 In my view, this State should do no less
12. The GAL Office, in its comment to this Court, states that the “GAL uses
a team consisting of a volunteer or staff member and an attorney to represent the
child’s best interests in the proceedings.”
13. Funding for the GAL Office rose from $10.4 million during the 20032004 fiscal year to $34 million for the 2006-2007 fiscal year. However, the current
GAL funding is miniscule when viewed in light of the 2006-2007 State of Florida
budget of $70.9 billion.
14. I recognize that the GAL Office expressed concern that due to limited
resources, a rule requiring appointment of GALs in all cases in which DCF moves
to administer psychotropic medication would force the program to withdraw from
current cases. Full funding of the GAL Office would obviate the need to make
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for our most vulnerable children—those who are in the court system because of an
adult’s abuse, neglect, or abandonment. 15 The benefits of full funding for GALs
and AALs for children include ensuring that children’s voices are heard, that
children receive needed services while in foster care, and that everything possible
is done to reduce the amount of time these children are without permanent homes.
ANSTEAD, J., concurs.
Original Proceedings – The Florida Rules of Juvenile Procedure
Mary Katherine Wimsett, Chair, Gainesville, Florida, Alan Abramowitz, PastChair, Orlando, Florida, Juvenile Court Rules Committee, John F. Harkness, Jr.,
Executive Director, Ellen H. Sloyer, Bar Liaison, The Florida Bar, Tallahassee,
Florida,
for Petitioner
Karen Gievers, Children’s Advocacy Foundation, Tallahassee, Florida; Bernard P.
Perlmutter, University of Miami School of Law Children and Youth Law Clinic,
Coral Gables, Florida; John J. Copelan, Jr., General Counsel, Peggy Sanford,
Deputy General Counsel, and Rebecca Kapusta, Assistant General Counsel, the
Florida Department of Children and Families, Tallahassee, Florida; Dennis W.
Moore, General Counsel, Statewide Guardian ad Litem Program, Tallahassee,
Florida; and Robert S. Jacobs, Advocacy Center for Persons with Disabilities, Inc.,
difficult choices as to which children are afforded representation in dependency
proceedings.
15. Hopefully, this statutory mandate can be fulfilled without placing the
judicial branch in budgetary competition with the GAL Office. Unfortunately, in
the past few legislative sessions, the judicial branch has been forced to compete
with the GAL Office for these scarce resources even though the total budget of the
judicial branch is less than one percent (0.6%) of the total state budget of $70.9
billion.
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Tampa, Florida, and Sylvia W. Smith, Advocacy Center for Person with
Disabilities, Inc., Tallahassee, Florida,
Responding with comments
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