
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Juvenile Justice, State of Florida, Petitioner, v. B.S., a child, Respondent.
    No. 94-1032.
    District Court of Appeal of Florida, Fifth District.
    July 22, 1994.
    
      Anita Langley, Dept, of Health and Rehabilitative Services, Orlando, for petitioner.
    No appearance for respondent.
   PER CURIAM.

Petitioner, the Department of Health and Rehabilitative Services, seeks certiorari review of an order adjudicating a minor delinquent for violating community control and detaining him pending disposition. The minor, B.S., is listed as the respondent. His community control was terminated after a successful period of supervision, but the court did not relinquish jurisdiction. The community control was subsequently reinstated by the juvenile judge after receiving a letter from the minor’s mother. Petitioner was ordered by the judge to allege a community control violation based on the statements in the mother’s letter. The minor waived counsel and pled guilty to violating community control.

Petitioner claims the minor’s due process rights were violated by the court’s action. Petitioner further complains that the court departed from the essential requirements of law and lacked statutory authority to order the minor into custody under the facts of this case. We do not reach the merits, though, because petitioner does not represent the minor. The minor neither appealed the adjudication of delinquency nor sought release from detention by way of habeas corpus. The procedural problems and statutory violations claimed by petitioner would have to be raised by someone with standing to argue on the minor’s behalf.

This case is similar to Department of Health and Rehabilitative Services v. State, 599 So.2d 123 (Fla. 5th DCA 1992), rev. denied, 606 So.2d 1165 (Fla.1992). In that ease, the Department of HRS sought certio-rari review of various detention orders, arguing that the risk assessment instrument prepared for each juvenile did not call for detention. This court in denying relief stated that even if HRS had standing -to seek certiorari review of the challenged orders, the court’s discretionary jurisdiction would not be exercised where the juveniles themselves had not complained. 599 So.2d at 127.

This case is distinguishable from those appeals taken by the Department of HRS from disposition orders which violated the statutory commitment procedure then in effect. See, e.g., In the Interest of K.J.M., 495 So.2d 241 (Fla. 5th DCA 1986); In the Interest of L.B., 493 So.2d 554 (Fla. 5th DCA 1986); In the Interest of K.A.B., 483 So.2d 898 (Fla. 5th DCA 1986). In those cases the Department’s duties as legal custodian of minors committed for placement were adversely affected by the orders being appealed.

Petitioner also argues that it lacked statutory authority to file the petition alleging violation of community control. We will not entertain petitioner’s criticism of its own participation in the VOCC proceedings. Petitioner complied with the court order directing the VOCC petition and did not seek emergency review via prohibition prior to filing it.

For the reasons discussed above, the petition for writ of certiorari is denied.

PETITION DENIED.

COBB and GOSHORN, JJ., concur.

THOMPSON, J., concurs and concurs specially with opinion.

THOMPSON, Judge,

concurring specially.

I agree with the well reasoned opinion of my brethren. I agree that we have an egregious situation, the unlawful detention of a juvenile, but because HRS elected to file a writ of certiorari instead of a writ of prohibition, we are unable to grant relief.

B.S. was detained for a delinquent act in 1993. The state attorney of the Ninth Judicial Circuit filed a petition for delinquency on 13 October 1993. As a result of the petition, the child was found to have committed the delinquent act. The child was set for his disposition hearing on 19 November 1993 and at that hearing adjudication of delinquency was withheld and the child was placed on community control under the supervision of HRS. The child was supervised by HRS until 22 March 1994. On that date, at the recommendation of HRS, the juvenile judge terminated community control and HRS’ supervision of B.S. In the order, however, the juvenile judge wrote “The Court does not relinquish jurisdiction.”

The mother of B.S. wrote an ex parte letter to the juvenile judge on 18 April 1994 listing problems she was having supervising the child. On 25 April 1994, after receiving this letter and without any notice or hearing, the juvenile judge issued a custody order for B.S. stating that B.S. was “Alleged to have Violated Conditions of Community Control.” The juvenile judge also entered an order requiring HRS to reinstate supervision and to file an “immediate VOCC” pursuant to the letter written by the mother, which was attached to the order. B.S. was taken into custody on 30 April and held in the Orlando Regional Juvenile Detention Center. On 4 May 1994, HRS filed a petition alleging violation of community control. The child was advised of his rights, waived an attorney to represent him and entered a plea of guilty. The child was adjudicated guilty of violation of community control and transferred from secure detention to home detention. B.S. was set for a disposition hearing.

A writ of prohibition would have been proper for several reasons. First, there was no basis for a violation of community control. The juvenile judge had terminated B.S.’ community control on 22 March 1994. Therefore, any act subsequent to 22 March was not a violation of community control. Section 39.054(1)(a)5 allows the juvenile court to place a child on community control until the child’s “19th birthday unless [t]he child is sooner released by the court, on the motion of an interested party or on its own motion.” In this case, the child’s community control was terminated before the violation petition was filed. HRS notified the court on 18 March 1994 that it “recommends honorable termination of supervision.” The juvenile judge agreed and terminated community control on 22 March 1994. HRS had no authority to file a petition for violation of community control since B.S. was not on community control.

Second, the child was ordered detained without a legal factual basis. This detention violates Juvenile Rule of Procedure 8.005. Rule 8.005 requires a verified petition to be filed, or an affidavit or sworn testimony presented to the court before a judge can issue an order authorizing that a child be taken into custody. In this case, the juvenile judge entered the custody order on 25 April, and the petition alleging violation of community control, was not executed until 4 May 1994. The juvenile judge neither had an affidavit nor did he take sworn testimony prior to issuing the custody order. Thus, the custody order was improperly issued. See also, § 39.042(3), Fla.Stat. (1993).

Finally, B.S. was ordered detained without meeting the criteria of section 39.042, Florida Statutes (1993). This section requires that all court orders regarding the detention of a child be based upon findings by the court that there is a need to detain the child as opposed to some less restrictive placement. § 39.042(2), Fla.Stat. (1993). The custody order made no such finding. Further, after the child was detained, we have nothing in the record before us to show that a risk assessment instrument was completed. See § 39.044(2), Fla.Stat. (1993); R.W. v. Soud, Jr., Judge, 19 Fla.L.Weekly S348, S349 (Fla. June 30, 1994). For these reasons, had a writ of prohibition been timely filed by HRS, the writ would have been granted. 
      
      . The first district in A.N.J. v. State, 554 So.2d 531 (Fla. 1st DCA 1989), found that the Department of HRS had standing to appeal an order adjudicating a minor delinquent and committing him to HRS custody. The first district relied on several cases, including L.B., and K.A.B. cited above. As explained in the text, those cases are distinguishable and do not support the proposition that the Department of HRS may appeal on behalf of a minor where the Department does not represent the minor.
     
      
      . There is an inherent inconsistency in the approach taken by petitioner. Petitioner's attorney objected below to the order directing the VOCC petition on the basis that it was no longer the supervising agency. The judge stated that if HRS took that position he would never terminate HRS supervision in any community control case and HRS would have to deal with the case load problem. Petitioner's attorney then stated that it would comply with the order and file the violation, but would also appeal it. The judge responded by telling petitioner's attorney that the relations between the court and HRS would be enhanced "if you would ask for a rehearing on some of those things rather than just zipping it up to Daytona Beach eveiy time you turn around.” Petitioner is estopped from prosecuting a case and then complaining that it did so. As an alternative to prohibition, HRS could have declined to follow the court's order and risk suffering the consequences, if any. Had HRS been held in contempt, appellate review of such an order would have been available.
     
      
      . In its petition for writ of certiorari, HRS argues that the juvenile judge was informed before the petition was filed that HRS had no authority to file a petition for violation of community control because an order terminating community control had been entered by the juvenile court and that order specifically released the child from the supervision of HRS. See § 39.-054(1)(a)5, Fla.Stat. (1993). As noted by my brethren, HRS capitulated to the judge's order. HRS should have considered a writ of prohibition at that time, especially since they had already decided to appeal.
     
      
      . The letter from B.S.’ mother was not under oath and she did not testify before the juvenile judge.
     