IN THE INTEREST OF R.G. AND A.G., CHILDREN. D.G., APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, APPELLEE
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Father D.G. appealed a dependency finding based on his chronic drug use allegedly causing harm to his minor children. The appellate court reversed and remanded because the tape recording of the children's critical testimony was blank, preventing adequate appellate review through no fault of the father.
The court reversed the dependency finding and remanded for retrial because the appellate record was incomplete through no fault of D.G.—the trial court's decision was based largely on the children's testimony, but the tape recording of that testimony was blank, preventing adequate appellate review.
[1] A finding of dependency will be reversed when critical portions of the record necessary for appellate review are unavailable through no fault of the appealing party.
[2] When a transcript of essential testimony is blank and unavailable due to a recording error, and this omission prejudices the appealing party, the case must be remanded fo…
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Join FLexlaw to unlock all legal intelligence“We are hampered in our review of this case because the trial court's decision was based, in large part, on the children's testimony at the dependency hearing but a transcript of their testimony is not part of the appellate record.”
Establishes the core problem preventing appellate review—the missing transcript of critical testimony.
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Join FLexlaw to unlock all legal intelligenceD.G. is the father of two minor children who were found dependent by the trial court. The Department of Children and Families filed a petition allegin…
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PER CURIAM.
D.G., the father of two minor children, challenges a finding of dependency claiming that there was insufficient evidence to support the trial court’s decision. We reverse because, through no fault of the father, critical portions of the record are unavailable for our review.
The dependency petition filed by the Department of Children and Families contained three counts alleging abuse, neglect, and abandonment. The trial court determined the adolescent children dependent based only on the first count and dismissed the other two for lack of evidence. The trial court ruled the children dependent based on their father’s chronic drug usage, thus causing harm to the children. § 39.01(30)(g)(2), Fla. Stat. (2001). D.G. admitted some recent illegal drug use and testified that he had attended three different residential rehabilitation programs in his seventeen-year marriage, the last in 1995, but he asserted that he had never used drugs in the presence of his children, as one child had claimed. The trial court’s order included a finding that the children and their mother admitted misrepresenting facts to authorities to obtain help for D.G. or because they were mad at him.
We are hampered in our review of this case because the trial court’s decision was based, in large part, on the children’s testimony at the dependency hearing but a transcript of their testimony is not part of the appellate record. When the court reporter attempted to transcribe the tape that had recorded the children’s testimonies, she found that it was blank. D.G. claims that he is severely prejudiced by this omission in the record, through no fault of his own, because the children’s testimonies are critical in this case. We agree.
In Jones v. State, 780 So. 2d 218 (Fla. 2d DCA 2001), a full transcript of the trial proceedings was requested by the defendant but was not available for review, through no fault of the defendant. The missing portions of the transcript were necessary for a complete review of the issues raised on appeal, and the court had no alternative but to remand the case for a new trial. The same is true in this case. See also Freeman v. State, 804 So. 2d 484 (Fla. 2d DCA 2001). D.G.’s counsel cannot adequately represent his client or accurately present the issues to us without this critical part of the record. Therefore, we reverse the finding of dependency and remand the case to the trial court for retrial.
Reversed and remanded.
FULMER, CASANUEVA and KELLY, JJ., Concur.
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Citator
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Julianne M. Holt v. Chief Judge OF the Thirteenth Judicial Circuit, 920 So. 2d 814 (Fla. 2d DCA 2006)…ngs. . To date, the problems courts have confronted relating to electronic court reporting systems have generally stemmed from equipment that malfunctioned completely or contained inaudible segments. See, e.g., D.G. v. Dep’t of Children & Families, 835 So. 2d 408 (Fla. 2d DCA 2003) (reversing finding of dependency for retrial where portion of tape that recorded children’s testimonies was blank). The Public Defender's argument suggests that in the future, courts will have to address complications caused by el…
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City OF Miami v. Hervis, 65 So. 3d 1110 (Fla. 3d DCA 2011)….200(b)(4), where transcript was unavailable through no fault of the appellant, and ultimately reversing for a new hearing when neither a transcript nor a stipulated statement of the evidence could be obtained); D.G. v. Dep’t of Children & Families, 835 So. 2d 408, 408-09 (Fla. 2d DCA 2003) (remanding for a new trial where court reporter determined that the tape recordings of the children’s testimony were blank and D.G. was prejudiced by this omission in the record through no fault of his own); Peretz v. Stat…
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In the Interest of R.G. and A.G. v. Dep't of Child. & Fam. Servs., 843 So. 2d 1045 (Fla. 2d DCA 2003)…AM. In this appeal D.G., the father of two minor children, challenges an order of adjudication of dependency and for supervised visitation. This court recently reversed the finding of dependency in D.G. v. Department of Children & Family Services, 835 So. 2d 408 (Fla. 2d DCA 2003), because critical portions of the transcript at the dependency hearing were unavailable for review. In light of this court’s decision in D.G., we summarily reverse the instant case and remand it to the trial court for a new trial.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jones v. State, 780 So. 2d 218 (Fla. 2d DCA 2001)
- Malachi Freeman v. State, 804 So. 2d 484 (Fla. 2d DCA 2001)