B.D., THE MOTHER

v.

DEPARTMENT OF CHILDREN AND FAMILIES, ET AL.

Third District Court of Appeal State of Florida

Opinion filed February 26, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-2252 Lower Tribunal No. 23-15489 D002 ________________

B.D., the Mother, Petitioner,

vs.

Department of Children and Families, et al., Respondents.

A Case of Original Jurisdiction – Prohibition.

Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for petitioner.

Karla F. Perkins, for respondent, Department of Children and Families; and Sara Elizabeth Goldfarb and Sarah Todd Weitz (Tallahassee), for respondent, Guardian ad Litem.

Before FERNANDEZ, BOKOR and GOODEN, JJ.

GOODEN, J.

2

The Petitioner B.D. filed a petition for writ of prohibition seeking review of an order denying her motion to disqualify the trial judge for ex parte communications. Because we find that the motion was legally sufficient, we grant the petition for writ of prohibition.

I.

B.D. is the respondent in a dependency case brought by the Department of Children and Family Services. At a hearing, B.D.’s minor child asked to address the trial court regarding a personal matter. The trial court thought it would be best if it spoke with the minor child in private. See Fla. R. Juv. P. 8.255(c). B.D. agreed to the one-on-one conversation, but requested that any in camera discussion be transcribed. No one objected to the request.

The meeting occurred several weeks later. Present at this meeting were the trial judge, the minor child, the Guardian Ad Litem supervisor, and the Children’s Home Society case manager. The minor child discussed her relationship with her mother and disclosed a history of abuse. What happened after this disclosure is at issue in this case.

The trial judge, Guardian Ad Litem supervisor, and the case manager proceeded to substantively discuss the merits of the case at length—in front of the minor child and outside of the presence of B.D. and her counsel. They

B.D. filed the instant petition for writ of prohibition seeking review of that order. She argues that the discussion of the substance of her case between these individuals—in front of her minor child and without her or her counsel being present—were improper ex parte communications warranting disqualification. The Department counters that B.D. agreed to an ex parte hearing and the trial court did not make any rulings at this hearing, so no prejudice resulted. It further claims that, instead of filing a petition for writ of prohibition, B.D. should lodge objections below to the statements made at the hearing so the trial court can rule on their admissibility. The Guardian Ad Litem focuses on dependency courts needing latitude to create a safe

II.

“A petition for a writ of prohibition is the proper vehicle to challenge a trial court’s order denying a motion to disqualify.” NexusVC v. Hieg Partners, LLC, 347 So. 3d 440, 445 (Fla. 3d DCA 2022). Disqualification is controlled substantively by section 38.10, Florida Statutes, and procedurally by Florida Rule of General Practice and Judicial Administration 2.330. § 38.10, Fla. Stat. (2024); Fla. R. Gen. Prac. & Jud. Admin. 2.330.

In ruling on a motion to disqualify, a trial court is limited to evaluating whether the motion is legally sufficient. Fla. R. Gen. Prac. & Jud. Admin. 2.330(h). It may not pass on the truth of the facts set forth in the motion. Id. The motion is legally sufficient where a “party reasonably fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.” Id. at (e)(1). “A mere subjective fear of bias will not be legally sufficient; rather, the fear must be objectively reasonable.” Arbelaez v. State, 898 So. 2d 25, 41 (Fla. 2005) (cleaned up). See also Rodriguez v. State, 919 So. 2d 1252, 1274 (Fla. 2005) (“Whether the motion is legally sufficient requires a determination as to whether the alleged facts would create in a reasonably prudent person a well-founded fear of not

A.

The Code of Judicial Conduct prohibits ex parte communication between the trial court and the parties, except in very limited circumstances. Fla. Code Jud. Conduct, Canon 3(B)(7). “This canon implements a fundamental requirement for all judicial proceedings under our form of government . . . .This canon was written with the clear intent of excluding all ex parte communications except when they are expressly authorized by statutes or rules.” In re Inquiry Concerning a Judge: Clayton, 504 So. 2d 394, 395 (Fla. 1987).

In reviewing the sufficiency of the motion, “[w]e are not . . . concerned with whether an ex parte communication actually prejudices one party at the expense of the other. The most insidious result of ex parte communications is their effect on the appearance of the impartiality of the tribunal.” Rose v. State, 601 So. 2d 1181, 1183 (Fla. 1992). See also Pearson v. Pearson, 870 So. 2d 248, 249 (Fla. 2d DCA 2004) (“It is because of its effect on the

Rose, 601 So. 2d at 1183.

What started as a permissible ex parte examination of the minor child under Rule 8.255(c) morphed into impermissible ex parte communications. See Fla. Code Jud. Conduct, Canon 3(B)(7)(e); Fla. R. Juv. P. 8.255(c). The trial court, Guardian Ad Litem supervisor, and case manager substantively discussed the merits of the case outside of the presence of B.D. and her counsel. They discussed B.D.’s mental health, the status of the reunification plan, B.D.’s compliance, and whether changes should be made to the plan. These communications are well-beyond what Rule 8.255(c) allows and the one-on-one conversation between the trial court and the minor child that B.D. consented to. They created the appearance of partiality. Rose, 601 So. 2d at 1183. B.D. and her counsel had a right to be present when the trial

Petition granted; Writ issued.