FLORIDA SUPREME COURT
JUDICIAL ETHICS ADVISORY COMMITTEE
Opinion Number: 2000-03
Date of Issue: February 2, 2000
Must a judge use the detailed fax transmittal form provided by the Department of Children and Family Services in order to comply with the judge's responsibility under Section 39.201, Fla. Stat. (1999), to report suspected child abuse, abandonment or neglect to the Department of Children and Family Services?ANSWER: No.
This inquiry comes from a Judge in the Juvenile Division of the Circuit Court. The judge's inquiry concerns the "Fax Transmittal Form to Report Child Abuse/Abandonment/Neglect" that was provided by the Department of Children and Family Services ("Department"). This form requests the reporting judge to provide the Department with detailed information regarding a suspected act of child abuse, abandonment or neglect. Specifically, the fax transmittal form requests the following information: (1) "Person(s) responsible for alleged abuse, abandonment, or neglect"; (2) "What happened?"; (3) "When did the incident occur?"; (4) "Where did the incident occur?"; (5) "Description of injuries/threat of harm"; (6) "Who else might be aware of the abuse/abandonment/neglect of the victim?". The inquiring judge is concerned that, in order to answer these questions, the judge would have to conduct an investigation to learn facts beyond the judge's personal knowledge, mostly, if not totally, on an ex- parte basis, potentially placing the judge in a position of having to disqualify herself or himself from future matters concerning the child. Therefore, the inquiring judge has asked whether the judge must use this form in connection with reporting suspected child abuse, abandonment or neglect to the Department.
In the instant matter, it is unknown how the inquiring judge obtained the fax transmittal form. It is unclear whether the judge received the form in response to the judge's written or oral report to the Department's central abuse hotline or, in the alternative, whether the Department provided the form to the court, without the forms having been requested by the court, so that the forms would be available to the judges in the event that circumstances arose making it necessary for a judge to report known or suspected child abuse, abandonment, or neglect. In either case, it makes no difference to this opinion because Section 39.201 does not require the judge to use the form provided by the Department of Children and Family Services.
Section 39.201(1)(g), Florida Statutes (1999) requires a judge who either knows or suspects that a child has been abused, abandoned or neglected, to report such knowledge or suspicion to the Department of Children and Family Services. The reporting judge complies with this requirement by contacting the Department's central abuse hotline either by telephone or in writing. See § 39.201(2)(a), Fla. Stat. (1999); §39.201(4), Fla. Stat. (1999). Once the judge reports to the central abuse hotline, the Department must conduct a proper investigation of the matter. See §39.201(2)(b), Fla. Stat. (1999); §39.301 Fla. Stat. (1999). The statute does not require or provide that the judge, or any other person making a report pursuant to Section 39.201, is to conduct the said investigation.
Furthermore, the inquiring judge's unique position prevents the judge from utilizing the fax transmittal form. In order to obtain the information requested by the form, the reporting judge would have to conduct extensive inquiries of various people, possibly including the child, by way of ex-parte communications. Such an inquiry would place the judge in an unwarranted adversarial position and possibly provide the judge with knowledge that would disqualify him or her from presiding over future matters concerning the child. It is the sole responsibility of the Department of Children and Family Services to conduct all necessary investigations regarding reported incidents of child abuse, neglect or abandonment. To the extent that the Department seeks to have a judge, as the reporter of abuse, gather the information necessary to complete the "Fax Transmittal Form to Report Child Abuse/Abandonment/Neglect", the Committee finds that that would be an inappropriate delegation of the Department's responsibility, pursuant to the applicable statute and, furthermore, would place the judge in an untenable position.
§39.201 Fla. Stat. (1999); §39.301 Fla. Stat. (1999).
The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.
For further information, contact The Honorable C. McFerrin Smith, III, Chair, Judicial Ethics Advisory Committee, DeLand Jail Building, 130 West New York Avenue, DeLand, Florida, 32720.
Participating Members: Graham, Attorney at Law, and Judges Cardonne, C. Kahn, L. Kahn, Kotey, Levy, Rodriguez, Silverman, Smith, and Swartz and Thompson.Copies furnished to: