IN THE INTEREST OF M.R., S.R., AND H.R., ALL CHILDREN
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A Florida appellate court vacated a termination of parental rights order because the parents' appointed counsel failed to appear at the critical adjudicatory hearing, violating their constitutional right to meaningful assistance of counsel. The court affirmed the trial court's disapproval of the maternal grandmother's proposed plan of conduct.
The court held that appointed counsel must provide services sufficient to give meaningful assistance to parents in termination of parental rights proceedings. The unexplained failure of appointed counsel to appear at the adjudicatory hearing fails, as a matter of law, to satisfy the requirement of meaningful assistance of counsel, and therefore the termination order must be set aside.
[1] An order terminating parental rights must be vacated where appointed counsel failed to provide meaningful assistance.
[2] The unexplained absence of appointed counsel at a termination of parental rights adjudicatory hearing constitutes a failure to provide meaningful assistance.
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Join FLexlaw to unlock all legal intelligence“The right of impoverished parents to the assistance of appointed counsel in proceedings for termination of their parental rights is a basic right guaranteed by the due process provisions of the United States and Florida Constitutions.”
Establishes the fundamental constitutional right at issue in the case
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Join FLexlaw to unlock all legal intelligenceThe Department of Health and Rehabilitative Services petitioned to terminate the parental rights of three young children whose parents were found to b…
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ALLEN, Judge.
This is an appeal from a final order terminating the parental rights of the parents of three young children.1 The children’s maternal grandmother, who was granted standing in the proceedings below, also appeals from the trial court’s disapproval of her proposed plan of conduct.2 Because the record fails to reveal that the insolvent parents were afforded meaningful assistance of counsel, we vacate that portion of the final order which terminated the parental rights of the parents. We find that the trial court’s disapproval of the grandmother’s proposed plan of conduct was within the discretion of the trial court and affirm that portion of the final order. At the advisory hearing3 on the petition by the Department of Health and Rehabilitative Services for termination of parental rights, the trial court determined that the parents were insolvent and appointed counsel as required by Section 39.465, Florida Statutes.4 Despite such appointment, and despite his being advised of the date for the adjudicatory hearing, the appointed counsel inexplicably failed to appear for the adjudicatory hearing.5 Other acts of the appointed counsel also raised doubts as to his competence, or at least as to the level of attention he gave to this case.6
The right of impoverished parents to the assistance of appointed counsel in proceedings for termination of their parental rights is a basic right guaranteed by the due process provisions of the United States and Florida Constitutions. In the Interest of D.B. and D.S., 385 So. 2d 83 (Fla.1980). Obviously, this fundamental right lacks vitality where counsel is not present at critical stages of the proceedings, or where appointed counsel’s performance otherwise fails to afford the most basic services which should reasonably be expected of competent counsel. Consequently, we hold that such counsel must provide services which are sufficient to provide meaningful assistance. Where meaningful assistance of counsel has not been provided, an order terminating parental rights must be set aside. We do not endeavor by this opinion to establish the exact contours of the principle announced herein, but we do hold that the unexplained failure of the parents’ appointed counsel to even make an appearance at a termination of parental rights adjudicatory hearing fails, as a matter of law, to satisfy the meaningful assistance of counsel required.
Accordingly, that portion of the final order disapproving the maternal grandmother’s proposed plan of conduct is affirmed. That portion of the final order terminating the parental rights of the children’s parents is vacated, and this cause is remanded for further proceedings in accordance with this opinion.
WENTWORTH and NIMMONS, JJ., concur. . Chapter 39, Part VI, Florida Statutes.
. Rule 8.760, Florida Rules of Juvenile Procedure.
. Section 39.466, Florida Statutes.
. Counsel appointed at trial was not the same counsel which represents the parents on appeal.
. A deputy clerk present at the adjudicatory hearing simply advised that the parents’ counsel was "out of the country.” No other explanation for counsel’s absence was provided.
.The appointed counsel’s responsive pleadings to the petition for termination of parental rights were a plea of "not guilty”, a demand for discovery under Rule 3.220, Florida Rules of Criminal Procedure, and a demand for trial by jury. Further, the appointed counsel's notice of appeal was an operating model on how to do almost everything wrong. Even after he was allowed by this court to amend the notice of appeal, the amended notice set forth the incorrect case style.
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J.B. v. Fla. Dep't OF Child. & Families, 170 So. 3d 780 (Fla. 2015)…effective assistance of state-provided counsel. Several district courts, however, have expressly recognized the right to effective assistance of counsel in TPR proceedings and the need for a procedure to enforce the right. For example in In re M.R., 565 So. 2d 371, 372 (Fla. 1st DCA 1990), the First District held that the right to counsel in TPR proceedings requires “that such counsel must provide services which are sufficient to provide meaningful assistance” and that “unexplained failure of the parents’ app…
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Lewis v. Dep't of Health & Rehabilitative Servs., 670 So. 2d 1191 (Fla. 5th DCA 1996)…option. This issue is moot, since we reverse the two orders, but we note in passing that an attorney should be present at each stage of a termination proceeding in order to render effective assistance of counsel. § 39.465(l)(a); In Interest of M.R., 565 So. 2d 371 (Fla. 1st DCA 1990). We are certain that the attorney for the mother will be present at rescheduled proceedings. Accordingly, we reverse the orders of adjudication and disposition and remand with instructions. First, the trial court must conduct an…
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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)…mitted reversible error and the termination order must be reversed. The procedure followed by the trial court failed to satisfy the due process requirement that meaningful assistance of counsel be provided to the Mother. See In the Interest of M.R., 565 So. 2d 371, 372 (Fla. [*1145] 1st DCA 1990); Beveridge, 682 So. 2d at 1143. Although the Department argues that the absence of the Mother’s counsel was harmless error, we cannot agree. Because the order of termination resulted from all of the evidence present…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In the Interest of D. B. and D. S., 385 So. 2d 83 (Fla. 1980)