EMILY CAPPETTA, APPELLANT,
v.
JOHN FIELDS, APPELLEE
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Emily Cappetta, the natural mother of a minor child, appeals a temporary custody order entered in favor of the father, John Fields. The court affirms the temporary custody order but vacates and remands the final judgment on grounds that it was prematurely entered while the appeal of the temporary order was pending.
The court held that a constitutional right to appointed counsel arises only in cases where the state seeks termination of parental rights or certain dependency petitions, not in disputes between parents over custody. Additionally, the final judgment was prematurely entered in violation of Florida Rule of Appellate Procedure 9.130(f) and therefore was vacated.
[1] An indigent parent is entitled to appointed counsel in state-initiated proceedings that may result in the termination of parental rights.
[2] A parent is not entitled to appointed counsel in a private petition filed by the other parent seeking a change of child custody.
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“Where the state brings a petition for the termination of parental rights, an indigent respondent parent is entitled to the appointment of counsel.”
Establishes the limited scope of the right to appointed counsel in custody cases—only when the state seeks termination of parental rights, not in inter-parental disputes.
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Join FLexlaw to unlock all legal intelligenceEmily Cappetta is the natural mother of a minor child (J.C.), and John Fields is the natural father. Fields filed a petition for change of custody, cl…
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PER CURIAM.
Emily Cappetta appeals a temporary order changing child custody. We affirm in part and reverse in part.
Appellant is the natural mother of a minor child, J.C. Appellee John Fields is the natural father. Upon a claim that the minor child was being mistreated, the father filed a petition for change of custody. After an evidentiary hearing, the circuit court entered an order temporarily changing custody to the father, pending final hearing. The mother filed a timely appeal.
The mother argues that under several Florida Supreme Court decisions, she is entitled to have counsel appointed for her in any ease in which child custody is at issue. The mother has misinterpreted the law on this subject.
Where the state brings a petition for the termination of parental rights, an indigent respondent parent is entitled to the appointment of counsel. See In the Interest of D.B. and D.S., 385 So. 2d 83, 90 (Fla.1980); Fla. R. Juv. P. 8.515. The same rule also applies in certain cases where the state brings a dependency petition. See In the Interest of D.F., K.W., and T.W., 622 So. 2d 1102, 1105 (Fla. 1st DCA 1993); Fla. R. Juv. P. 8.320.
The mother relies on the parenthetical statement in In the Interest of E.H., 609 So. 2d 1289 (Fla.1992), that “a constitutional right to appointed counsel arises where the proceedings can result in permanent loss of parental custody.” Id. at 1290. The reference to permanent loss of custody in E.H. means termination of parental rights. E.H. is not referring to the situation now before us, which involves a petition filed by one of the child’s parents, seeking a change of custody.
We find no merit in the mother’s remaining points on appeal challenging the order temporarily changing custody. Consequently, the temporary custody order is affirmed.
On May 22, 1996, the trial court entered a final judgment changing the custody of the child to the father. By motion, the mother argues that the final judgment should not have been entered while the appeal of the temporary custody order was pending. The mother’s point is well taken. Florida Rule of Appellate Procedure 9.130(f) provides:
(f) Stay of Proceedings. In the absence of a stay during the pendency of a review of a non-final order, the lower tribunal may proceed with all matters, including trial or final hearing; provided that the lower tribunal may not render a final order disposing of the cause pending such review.
Consequently we vacate the final judgment as having been prematurely entered. We remand the cause to the trial court with directions to reenter the final judgment. If after the final judgment is reentered, the mother still desires to appeal, she must file a new notice of appeal within thirty days of the rendition of the new final judgment. Affirmed in part, reversed in part, and remanded with directions to reenter the final judgment.
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The Napoleonic Soc'y OF Am., Inc. v. Snibbe, 696 So. 2d 1243 (Fla. 2d DCA 1997)
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Llanso v. Gomez De Cordova, 263 So. 3d 137 (Fla. 3d DCA 2018)…3, 634 (Fla. 5th DCA 2005); see also Napoleonic Soc. of Am., Inc. v. Snibbe, 696 So. 2d 1243, 1243 (Fla. 2d DCA 1997) (finding that final judgment entered during pendency of appellate review of a non-final order was a nullity); Capetta v. Fields, 683 So. 2d 543, 544 (Fla 3d DCA 1996). Because the trial court entered a final judgment disposing of this case before this Court dismissed the interlocutory appeal, the trial court lacked jurisdiction to enter the Final Judgment and the subsequent orders stemm…
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Cappetta v. Fields, 718 So. 2d 374 (Fla. 3d DCA 1998)…from the the natural mother to the natural father; and (2) reversed a final judgment awarding permanent custody to the father where it was prematurely entered during the pendency of the appeal of the temporary custody order. See Cappetta v. Fields, 683 So. 2d 543, 544 (Fla. 3d DCA 1996). We remanded the cause with directions for the lower court to reenter its final custody judgment and to permit the mother to timely appeal the judgment, if she so desired. Id. The record evidence before us indicates, however,…
Authorities Cited
- In the Interest of D. B. and D. S., 385 So. 2d 83 (Fla. 1980)
- In the Interest OF E.H., 609 So. 2d 1289 (Fla. 1992)
- In the Interest of D.F., 622 So. 2d 1102 (Fla. 1st DCA 1993)