IN THE INTEREST OF M.D.A., D.J.A., AND M.L.A
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Florida Fourth District Court of Appeal reversed a final judgment terminating a father's parental rights and committing three minor children to the Department of Health and Rehabilitative Services, holding that the trial court violated due process by failing to advise the father of his right to counsel of his choice early in the dependency proceedings.
The court held that parents facing possible permanent termination of custody have a due process right to be advised early in the proceedings of their right to counsel of their choice, and that the trial court's failure to provide such advisement violated this right. The court reversed the judgment because the father might have fared differently had he been properly advised and represented from the beginning.
[1] Parents facing the possibility of permanent termination of parental rights are entitled to be advised of their right to counsel.
[2] A parent's due process right to be advised of their right to counsel of choice in dependency proceedings should be honored early in the proceedings.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the child or parent shall, prior to an adjudicatory hearing, be advised by the court of his right to counsel”
Establishes the statutory requirement to advise parents of their right to counsel early in dependency proceedings.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe father of three minor children was involved in multi-year dependency proceedings that included an initial arraignment, adjudicatory and dispositio…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Right To Counsel Of Choice cases and more on FLexlaw
DOWNEY, Judge.
The father of three minor children prosecutes this appeal from a final judgment of the circuit court permanently terminating his parental rights and committing his children to the custody of the Department of Health and Rehabilitative Services for adoption placement.
Without detailing the long history of dependency proceedings and the questionable care and treatment of the children by their parents, suffice to say that dependency proceedings were had involving an initial arraignment, adjudicatory and dispositional hearings, several judicial reviews, the execution of a performance agreement, and, eventually, a further judicial review on November 19, 1985, at which the trial court advised the parents that a permanent placement plan for these children was imminent. Thereafter, the court appointed counsel for the father and, after the final judicial review, the judgment appealed from was entered and a permanent placement plan was approved by the court.
On appeal, the father contends the trial court erred 1) in not advising him early on of his right to counsel, 2) in failing to timely appoint counsel, 3) in severing the father’s parental rights based on the evidence, and 4) in failing to appoint a guardian ad litem to represent the children at the permanent commitment hearing.
Because we find the judgment must be reversed based upon the failure of the trial court to advise the father of his right to counsel of his choice during the early stages of the proceedings, we need not treat the other points raised.
Section 39.406, Florida Statutes (1981), provides that “the child or parent shall, prior to an adjudicatory hearing, be advised by the court of his right to counsel.” The right to counsel of one's choice is a due process constitutional right to be distinguished from the constitutional right to appointment of counsel. As the Supreme Court of Florida held in In the Interest of D.B., 385 So. 2d 83 (Fla.1980), when parents are facing the possibility of permanent termination of custody, they are, if indigent, entitled to the appointment of counsel. Whereas, if permanent termination of custody is not threatened, appointment of counsel is to be determined by the court on a case-by-case basis. Davis v. Page, 714 F. 2d 512 (5th Cir.1983), cert. denied, 464 U.S. 1052, 104 S.Ct. 735, 79 L.Ed.2d 194 (1984).
There is a further due process right to be advised of one’s right to counsel of his choice in dependency proceedings, which right should be honored early on in the proceedings. An excellent explication of this right is set forth in the concurring opinion of Judge Cowart in White v. Dept. of Health and Rehabilitative Services, 483 So. 2d 861, 864 (Fla. 5th DCA 1986).
See also In the Interest of A.T.P., 427 So. 2d 355 (Fla. 5th DCA 1983).
In the present case, unfortunately, the proceedings had been going on for several years before permanent termination became a real threat and the trial court appointed counsel for the father. Prior thereto the court had not advised him of his right to counsel of his choice.
Thus, by the time counsel was appointed for the father, any prejudice accruing from the absence of counsel had set in because, of course, the final review at which the termination hearing occurs involves the proceedings that have transpired from the commencement of the matter. Our review of this case convinces us that the father might have fared differently had he been advised of his right to counsel at the beginning of the proceedings.
Thus, we feel compelled to reverse the judgment and remand the cause to the trial court for further proceedings.
REVERSED AND REMANDED, with directions.
LETTS and WALDEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Fredrick v. State, 523 So. 2d 1164 (Fla. 5th DCA 1988)…tion of child dependency in a proceeding in which the mother was not provided, or offered, legal counsel to deprive the mother of her parental rights and was not advised that she had the right to counsel of her choice. See In the Interest of M.D.A., 517 So. 2d 711 (Fla. 4th DCA 1987), where the Fourth District Court of Appeal reversed a judgment permanently terminating parental rights because the parent had not been notified of his right to counsel of his choice during dependency proceedings occurring several…
-
Dep't of Health & Rehabilitative Servs. v. Zeigler, 587 So. 2d 602 (Fla. 5th DCA 1991)…ng under this part, the court shall advise the parent, guardian, or custodian of his right to have counsel present. . See section 39.467(2)(c)1., Florida Statutes; White v. Department of H.R.S., 483 So. 2d 861 (Fla. 5th DCA 1986); and In re M.D.A., 517 So. 2d 711 (Fla. 4th DCA 1987). . The issue as to the underlying order adjudicating dependency resulting from failure to advise the parent of their right to have counsel per Rule 8.560(a)(1), was not raised or presented in White v. Department of HRS, 483 So.…
-
In the Interest of L.N. v. Dep't of Child. & Fam. Servs. & Guardian Ad Litem Program, 814 So. 2d 1142 (Fla. 2d DCA 2002)…urt, including at the hearing when the Mother’s counsel had been absent and the Mother had not waived her right to counsel, we conclude that the Mother was prejudiced by counsel’s absence and that reversal is required. See In the Interest of M.D.A., 517 So. 2d 711, 712 (Fla. 4th DCA 1987). We therefore reverse the order of termination and remand for a new evidentiary hearing. Reversed and remanded. BLUE, C.J., and ALTENBERND, J., Concur. . The Mother is represented by different counsel in this appeal.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In the Interest of D. B. and D. S., 385 So. 2d 83 (Fla. 1980)
- White v. Dep't of Health & Rehabilitative Servs., 483 So. 2d 861 (Fla. 5th DCA 1986)
- McKnight v. United States, 464 U.S. 1052 (U.S. 1984)
- In the Interest of A.T.P. v. State, 427 So. 2d 355 (Fla. 5th DCA 1983)
- Hilary Davis v. Page, 714 F.2d 512 (5th Cir. 1983)