Admission of Evidence: No Abuse of Discretion in Denying Untimely Request for Expert Witness Testimony

K.A. v. Department of Children and Families, 2017WL1494002 (Fla. 3d DCA)

The mother appealed from the trial court’s order terminating her parental rights. She argued the court erred in denying her right to present expert testimony regarding her psychological issues and returning children to the father, despite alleged domestic violence incidents. The Third DCA affirmed.

On the second day of the TPR trial, the mother sought to call a witness, whom she had never listed, as required by Florida Rule of Juvenile Procedure 8.245(b)(2)(A) and (b)(3). The Department was unaware of the witness’s existence or the mother’s intent to call the witness. The Department had never spoken with the witness or had an opportunity to depose the witness or to prepare for the proffered testimony.

The Department, the Guardian ad Litem Program, and the attorney ad litem for the child all objected, arguing unfair surprise and prejudice. The trial court agreed and prohibited the mother from calling the witness. Mother appealed and the Third DCA held the trial court did not abuse its discretion, citing S.S. v. Dep’t of Children & Fam. Servs., 784 So. 2d 479 (Fla. 4th DCA 2001).

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