Barry L. Zisser, Nancy N. Nowlis, and Donald E. Brown of Zisser, Robison, Spohrer and Wilner, P.A., Jacksonville, for petitioner.
Alan Brown petitions this court for a writ of prohibition, contending that Circuit Judge Dorothy Pate erroneously denied his motion to disqualify her from presiding over a dependency proceeding involving his children. For the reasons that follow, we deny the petition.
In April, 1990, Margaret Brown was discovered dead inside her car at a Jacksonville shopping center. Subsequently her husband Alan was charged with the murder of his wife. There are two minor children born of the marriage, now ages five and three. On May 2, 1990, Judge Alban Brooke placed the children with their paternal grandmother. The maternal grandparents then petitioned the circuit court to adjudicate the children dependent. Judge Brooke recused himself because he was personally acquainted with the parties to the litigation and Judge Pate was assigned to the cause. In August Judge Pate entered an order which adjudicated the children dependent. That order includes the following paragraph:
Petitioners [maternal grandparents] did not rely on the arrest and incarceration of the father to support dependency of the children. Recognizing that the father is awaiting trial on the criminal charges and presumed innocent in that case, the unrebutted evidence presented in this case is that the father killed the mother on April 26, 1990. The cause of death was homicide.
On September 21 Judge Pate ordered that the natural father would have contact only as recommended by a treating psychologist. An order was entered on October 3 which placed the children in the custody of the maternal grandparents and granted visitation to the paternal grandmother. It was reaffirmed that the children have contact with their father only as determined by their therapist. On October 18, 1990, Alan Brown was found not guilty by a jury on charges of the murder of his wife. Subsequently the maternal grandparents filed a motion seeking to prohibit visitation by the father until the court had received expert testimony on the matter. An evidentiary hearing was held and the therapist recommended that the father have supervised visitation with his children. On November 5 the trial court entered an order which reserved disposition of the motion to prohibit visitation. The father was ordered to undergo psychological evaluation.
Judge Pate entered an order on November 2 granting the motions of two Jacksonville television stations and the Florida Publishing Company to cover all hearings in the dependency case. She acknowledged the statutory basis for closure but found that a blanket rule of closure would be constitutionally suspect and therefore weighed the competing interests. It was ordered that the files be kept closed but the media was allowed to attend the hearings. It was prohibited, however, from publishing any pictures of the children, their names, the testimony of professional therapists or any sensitive personal family information which had not previously been disclosed to the media. Media personnel were directed to consult with legal counsel regarding any questions as to the terms of the order.
On November 13 Brown moved for the disqualification of Judge Pate. This was accompanied by an affidavit of movant, the pertinent portions of which provide as follows:
I believe I will not receive a fair trial in the litigation in the above-styled cause due to the prejudice of the judge of that court against me.
Judge Pate has opened this juvenile proceeding to members of the news media contrary to section 39.408(2)(c), Fla.Stat.
(1989). Having matters relating to visitation and custody of my daughters displayed on television and in the newspapers, is contrary to the best interest of the two minor children.
Recently, I was advised by a newspaper reporter of the contents of an order signed by Judge Pate. This information was received prior to my counsel receiving a copy of the order from the judge. This information was later printed in a local newspaper.
I am further concerned about the impartiality of the judge in that she has made comments to the effect that she has "grave concern" about my being allowed access to my children despite the fact that the therapist for the children has testified it is in the best interest of my daughters that they have visitation with me. The court has received no information from any child psychologist or other professionals ...