
    In the Interest of H.B., a child, Appellant, v. STATE of Florida, Appellee.
    No. AW-207.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1984.
    
      Edward S. Stafman, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Eric J. Taylor, Asst. Atty. Gen., for appellee.
    Joseph S. Conlin, Tallahassee, for Child.
   SHIVERS, Judge.

Appellant, the mother of H.B., appeals the trial court’s denial of her motion to dismiss a dependency petition. We reverse.

On July 18, 1983, the Department of Health and Rehabilitative Services filed a petition for dependency which petition alleged that H.B. had been sexually abused by her stepfather. Appellant/mother filed a motion to dismiss the dependency petition on October 19, 1983, alleging that no adjudicatory hearing had been held on the dependency petition within 90 days as mandated by Fla.R.Juv.P. 8.180, i.e., the time for speedy trial expired on October 16, 1983. Hearing was held on this matter on October 21, 1983, and after hearing argument of counsel, the trial judge denied appellant/mother’s motion, finding that the speedy trial rule was not appropriate in juvenile cases. The trial judge did not reduce his ruling to writing.

Fla.RJuv.P. 8.180(a) and (b) provide: Rule 1.180. Speedy Trial
(a) Time. Every case in which a petition has been filed alleging a child to be delinquent or dependent shall be brought to an adjudicatory hearing without demand within ninety (90) days of the earliest of the following dates:
(1) The date the child was taken into custody.
(2) The date the petition was filed.
(b) Dismissal. If the adjudicatory hearing is not begun within ninety (90) days or an extension thereof as hereinafter provided the petition shall be dismissed with prejudice.

First, it is unquestionably clear that the trial judge erred in finding that the speedy trial rule is not appropriate in juvenile cases, since if the trial court’s ruling is correct Fla.R.Juv.P. 8.180 would be a nullity. Second, the trial court’s extension of the speedy trial period in this case was error in that an extension order must be entered, reciting the reasons for the extension, prior to the time speedy trial period expires for there to be a valid extension of the speedy trial period. See T.L. v. Byrd, 451 So.2d 535 (Fla. 5th DCA 1984); Fla.R. Juv.P. 8.180. Here, the ruling by the trial judge was entered subsequent to the speedy trial period, was not reduced to writing, and was insufficient as a matter of law as regards the reason given for the extension. Accordingly, we find and hold that the trial judge erred in not dismissing the dependency petition. See generally, T.L. v. Byrd, supra; J.J.S. v. State, 440 So.2d 465 (Fla. 1st DCA 1983); M.M. v. State, 407 So.2d 262 (Fla. 3d DCA 1981); M.B. v. Lee, 388 So.2d 1364 (Fla. 5th DCA 1980); R.L.P. v. Korda, 380 So.2d 1329 (Fla. 4th DCA 1980); compare St. Dept. of Health & Rehab. Serv. v. Lancione, 430 So.2d 970 (Fla. 2d DCA 1983).

Notwithstanding the above, appellee argues that appellant waived the right to a speedy trial by agreeing to several continuances. However, the record does not contain any written motion for, or the granting of, a continuance. We must assume the record before us is complete. See M.B. v. Lee, 388 So.2d 1364 (Fla. 5th DCA 1980).

The order of the trial court finding H.B. dependent therefore is REVERSED, and the petition for dependency is DISMISSED with prejudice.

WIGGINTON, J., concurs specially with written opinion.

MILLS, J., dissents with written opinion.

WIGGINTON, Judge,

concurring specialty-

I am in accord with Judge Shivers’ opinion reversing the trial court’s finding of dependency as this holding properly expresses the state of the law presently in effect and applicable to the facts presented in the juvenile dependency ease before us. I join him in following the pertinent Rules of Juvenile Procedure and case law despite my intuition that neither the legislature nor the rule makers forethought the not-so-subtle distinctions between “delinquent” proceedings and “dependent” proceedings such as to apply synonymously the effects of rule 1.180, speedy trial.

Despite our lack of affinity for the speedy trial rule as applied to the facts of this case, we do not find from the record that H.B. has been or will be thrust back into a home environment of “horribles.” The passage of time in normally processing this appeal (no motion to expedite having been filed) has permitted almost a year to elapse since the stepfather was barred from the home by an interim order of the circuit judge entered September 2, 1983. That order, along with the November 14, 1983 order adjudicating H.B. to be dependent, established the law of the case and has been in effect until now, albeit that we are now about to reverse that final order.

During this period of eleven months we must assume that HRS and the parties abided by those orders with HRS supervising the home and family through its protective services and the mother and child attending counseling sessions at Apalachee Community Mental Health Services.

To our knowledge, H.B. has not been victimized or subject to a reoccurrence of further offensive or repulsive sexual acts since being returned to the home. The trial court, who at the time of entering the order of dependency surely knew the whereabouts, circumstances and status of the stepfather, found no reason to provide additional safety measures than were already established and which have continued now for almost a year.

We are concerned with misapplication of the rule to dependency proceedings. The evident dichotomy and distinction to be recognized is that while a juvenile delinquency proceeding is obviously criminal and adversarial in nature, a juvenile dependency proceeding is civil, usually informal and oftentimes finding the dependent to be the victim of parental abuse or other offenses not his fault. The goal of the delinquency action, prosecuted by the state, is to determine guilt or innocence, while the parties’ focus in a dependency proceeding is that of devising a plan to meet the ends of justice and best suit the interest and long-range needs of primarily the child and secondarily the family.

The framers of the 1977 Revisions to the Juvenile Rules merely proposed and had adopted the adult speedy trial rule with a more restrictive time limitation. See Committee Notes to Fla.R.Juv.P. 8.180. The application of criminal or delinquent speedy trial case law to juvenile dependent cases more than often precludes attaining the goal, despite ongoing efforts of all concerned, to fashion a plan that is in the best interest of the child. For instance, there is no discretion on the part of the juvenile judge to consider a motion for an extension of time filed after expiration of the ninety days. Additionally, the rule makes no provision for the dependent child being able to waive voluntarily his right to a speedy trial, a right expressly reserved to the delinquent by Fla.R.Juv.P. 8.180(c). And, more fundamentally, the issue necessarily arises as to whether there is a need and place at all for the speedy trial doctrine in juvenile dependency disputes.

There is a dearth of cases involving the speedy trial rule application to dependency proceedings. I find none on point in this case or even close to the target, as seems to be the situation with the participating parties. Nevertheless, in my view, the overlay and application of criminal rules and case law to civil type proceedings such as this stifles the parties’ and judges’ abilities to fashion plans and remedies to serve best the ends of justice. Chapter 39, Florida Statutes, Proceedings Relating to Juveniles, and the Rules of Juvenile Procedure, should be critically reviewed in light of the obvious dichotomy that should be made between delinquent and dependent juveniles.

Judge Boyer stated in his special concurrence in State v. Ansley, 349 So.2d 837 (Fla. 1st DCA 1977):

I do not agree with the rule. (Fla.R. Crim.P. 3.191) [Speedy Trial] I think it to be bad law.... However, it is not the prerogative of this Court (as it is the Supreme Court) to question the wisdom of the rule. We have but one choice, to follow. I therefore most reluctantly, with full knowledge that justice is not achieved but is thwarted, concur in the opinion authored by my brother Judge Rawls.

At 839.

Just as Judge Boyer recognized this Court's duty to apply the clear mandate of the law, so also do I recognize that obligation which, under our system, precludes us from reaching the result which we may individually prefer in lieu of that which is clearly required by the applicable law.

MILLS, Judge,

dissenting:

I dissent. I would affirm this intriguing case of confusion and errors because to do otherwise would totally ignore the justice it demands.

H.R.S. filed a petition alleging that a five-year-old female child was a dependent child because she had been exposed on numerous occasions to sexual fondling and to oral sexual acts by her stepfather. After the adjudicatory hearing, the trial court found the child to be a dependent child for the reasons alleged in H.R.S.'s petition and because the child’s natural mother was told of the incidents but did not provide help for her child. The trial court ordered that the child remain in the custody of her natural mother but under the supervision of H.R.S.

The child’s natural mother, who defended this action, did not appeal the trial court’s order on the merits but did appeal the trial court’s refusal to grant her motion to dismiss the petition because the adjudicatory hearing was not held on the petition within 90 days of its filing as required by Fla.R. Juv.P. 8.180.

The petition was filed on 18 July 1983. The case went to hearing on 21 October 1983. This was five days after the expiration of the 90th day.

H.R.S. contends the mother sought numerous continuances. This she denies. The mother contends H.R.S. sought numerous continuances. This it denies. None of the motions was reduced to writing. None of the motions was approved by court order.

The trial court ruled that the speedy trial rule does not apply in juvenile cases. It denied the mother’s motion to dismiss but granted H.R.S.’s oral motion for extension of time for the adjudicatory hearing subsequent to the 90-day period. A written order was never rendered. The trial court ignored Fla.R.Juv.P. 8.180.

I have no quarrel with the law cited by the majority. Nevertheless, my sense of morality, my sense of justice, my paternal feeling for this little girl upon whom the stepfather has inflicted numerous atrocious sexual abuses with the knowledge and consent of the natural mother is more than I can or will tolerate.

The mother’s statement in her reply brief that “[ojnce an abuse case is dismissed, another such case may still be pursued on acts of abuse occurring after the dismissal” is nauseating to me. How much must this little girl endure before someone helps her?

In a case such as this, are we compelled to blindly adhere to the law? Are we to totally disregard the consequences? Are we to totally ignore this child and her life? Are we to abandon this child to this barbaric treatment?

I say no! This is a case where common sense needs to be placed on the scales of justice, and when this is done there is no doubt but that the scales balance heavily in favor of an affirmance of this case.

It is necessary that I challenge the statements made in the second, third and fourth paragraphs of the specially concurring opinion.

None of these statements is supported by the record on appeal filed by the mother in this appeal. The record on appeal consists of a petition for dependency, motion to dismiss petition and an order adjudicating the child a dependent. The petition alleged that the child was a dependent child because she had been exposed on numerous occasions to sexual fondling and to oral sexual acts by her stepfather. The motion to dismiss alleged that the petition should be dismissed because the adjudicatory hearing was not held within 90 days of the filing of the petition. The order adjudicating the child a dependent found that the child had been exposed on numerous occasions to sexual fondling and oral. sexual acts by her stepfather and that the child’s mother was told by the child on at least two occasions but she did not provide help for the child.

This Court is not permitted to indulge in factual assumptions nor is it permitted to state facts based on its knowledge and belief. Our factual statements must be based on the record made in the trial court and filed in the appeal.

Also, it is important that I point out that the reversal of this case by the majority will result in the return of this child to the home environment in which she was so repulsively sexually abused. Even HRS supervision would be terminated.

Perhaps I will be condemned for ignoring the law, but if I am, so be it. I had rather be condemned and know that I tried to save one little girl’s life, one I do not know, but for whom I have great compassion. 
      
      . In his dissent, Judge Mills points out that after the adjudicatory hearing on H.B.’s dependency, the trial court entered an order which found H.B. to be a dependent child for the reasons alleged in the HRS petition and because the child’s natural mother was told of the child abuse incidents, but did not provide help for the child. In this order, after making these findings, the trial judge ordered that H.B. remain in the custody of her natural mother, appellant herein, albeit with supervision by HRS. Nonetheless, this order and the findings contained therein are invalid since the trial judge was without jurisdiction to conduct a hearing on the matter of H.B.’s dependency after the speedy trial time period had elapsed. We were not furnished a transcript of the dependency hearing since the substantive portions of the order entered as a result of the dependency hearing are not before this court for judicial review.
     
      
      . If H.R.S. had appealed from this part of the trial court’s order, I would have reversed because, under the facts of this case, the mother was unfit to have custody of her child.
     