CALANDRA FISHER, APPELLANT,
v.
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, APPELLEE

Fla. 5th DCA | 1996-05-31
No. 95-1909
W. SHARP and HARRIS, JJ., concur.
674 So. 2d 207 Florida District Court of Appeal, Fifth District (1996) Caution
Cited by 4 cases

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.

Synopsis

Calandra Fisher appeals the termination of his parental rights to his daughter, arguing that fundamental error occurred because the guardian ad litem appointed for the child did not serve the entire case. The court affirmed, holding that the failure to maintain a guardian ad litem throughout the proceeding was not fundamental error where the child's rights were adequately protected by the court, HRS, and foster parents.


Holding

The court held that it was not fundamental error to proceed without a guardian ad litem for the entire case where: (1) the trial court attempted to appoint a replacement but none was available; (2) the child's rights were adequately safeguarded by the court, HRS, and foster parents; and (3) the original guardian discharged his duties before resigning, including recommending termination and testifying at trial.


Headnotes

[1] A trial court does not commit fundamental error in terminating parental rights when a guardian ad litem, though mandated, is unavailable and the child's rights are otherw…

[2] A former guardian ad litem's testimony at a termination hearing, even after resignation, can contribute to safeguarding a child's rights.

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Key Quotes

“Although the legislature had mandated the use of guardians ad litem in parental termination proceedings, no program had been implemented to provide an adequate supply of guardians.”

Establishes the systemic problem of insufficient guardian ad litem availability that justified the exception to the mandate

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Facts & Procedural History

C.F. was adjudicated dependent on February 15, 1993, after testing positive for cocaine twice after birth; both parents also tested positive for cocai…

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Opinion of the Court
THOMPSON, Judge.

THOMPSON, Judge.

Calandra Fisher appeals the termination of his parental rights to C.F.1 His only argument on appeal is that the trial court committed fundamental error when the guardian ad litem appointed for C.F. did not serve the entirety of C.F.’s ease. We affirm.

C.F. was adjudicated dependent on 15 February 1993 because she tested positive for cocaine on two occasions after her birth.2 At the dependency hearing, the trial court found that both parents also tested positive for cocaine. C.F. was adjudicated dependent and placed in the custody of the Department of Health and Rehabilitative Services (“HRS”). A guardian ad litem was appointed for C.F. in May 1993 and served until his resignation in September 1994. The trial court entered a final judgment terminating both parents’ parental rights on 29 June 1995. We find the case of In re E.F., 639 So. 2d 639 (Fla. 2d DCA 1994) controlling.

In E.F., the trial court terminated the parental rights of A.D. although her children for the most part had not been represented by a guardian ad litem. Id. at 639. The trial court was not able to appoint a guardian ad litem because none was available. The Second District wrote that although the legislature had mandated the use of guardians ad litem in parental termination proceedings, no program had been implemented to provide an adequate supply of guardians. Thus, trial courts were forced to rely upon an insufficient number of volunteers. Id. at 640. The court held that it was not fundamental error if the trial court unsuccessfully attempted to appoint volunteer guardians as long as the rights of the children were safe-guarded by the court, HRS and the foster parents. Id. at 644.

The facts in this case are similar. In this case, a guardian was appointed to protect the interest of C.F. The guardian served until his resignation several months later. After the appointed volunteer guardian resigned, the trial court entered repeated orders referring the case to the guardian ad litem program, however, none was appointed. The former guardian did testify at the termination hearing. He testified that he saw C.F. and her sister N.F. at their foster home after he resigned. Further, he said that he had recommended that parental rights be terminated in March 1994, well before HRS set the termination case in motion. We find no fundamental error. The record does not show that C.F.’s rights were not adequately protected by the court, HRS, and the foster parents. Further, the guardian discharged his duties. He represented the interest of the child through a substantial portion of the case, recommended termination of Fisher’s parental rights before he resigned, and testified at trial.

Finally, the continued service of the guardian would not have changed the outcome of this case. As stated by the court in E.F.:

A guardian ad litem might have eased and speeded the children’s trip through foster care, but it is highly unlikely that the guardian would have prevented this termination.

Id. at 645.

We affirm the entry of the final judgment terminating parental rights.

AFFIRMED.

W. SHARP and HARRIS, JJ., concur. . Although the parental rights of both parents were terminated, this opinion concerns only the appeal of the father. . C.F.’s sister, N.F., was also adjudicated dependent in a separate proceeding. The parental rights were terminated as to both children at the same hearing, but in two separate cases.


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Citator

Cited By

  • C.M. v. Dep't of Child. & Fam. Servs., 854 So. 2d 777 (Fla. 4th DCA 2003)
    …994) (holding that failure to appoint guardian ad litem did not rise to level of fundamental error where trial court made good faith attempt to locate and appoint guardian ad litem, but none was available); Fisher v. Dep’t of Health & Rehab. Servs., 674 So. 2d 207, 208 (Fla. 5th DCA 1996) (same). However, where there was no evidence that a trial court made any attempt to appoint a guardian, the third district held that this clear violation of the statutory mandate constituted reversible error. See G.S. v. Dep…
  • Vestal v. Trixy Vestal, 731 So. 2d 828 (Fla. 5th DCA 1999)
    …ised the issue of the lack of a guardian for the first time on appeal and that this court has held that failure to appoint a guardian in a termination case is not fun [*829] damental error. See Fisher v. Department of Health & Rehabilitative Servs., 674 So. 2d 207 (Fla. 5th DCA 1996). However, Fisher and the case upon which it relied, In re E.F., 639 So. 2d 639 (Fla. 2d DCA 1994), are distinguishable from the instant case, in which we find that the failure to appoint a guardian warrants reversal despite the l…

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