IN THE INTEREST OF C.J., A CHILD. J.C.-J., APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES AND GUARDIAN AD LITEM PROGRAM, APPELLEES

Fla. 2d DCA | 2008-08-15
No. 2D07-5990
STRINGER and KELLY, JJ., Concur.
987 So. 2d 828 Florida District Court of Appeal, Second District (2008) Positive Treatment
Cited by 2 cases

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Synopsis

The Florida District Court of Appeal reversed the termination of a mother's parental rights because the evidence was insufficient to support either abandonment or that termination was in the child's manifest best interest. The court also expressed concern about potential due process violations, including inadequate notice of the right to counsel and lack of meaningful opportunity to work on a case plan.


Holding

The court reversed the termination order, holding that the evidence was insufficient to support either the ground of abandonment or that termination was in the child's manifest best interest. The court remanded for further proceedings and cautioned the trial court to ensure the mother's due process rights are observed.


Headnotes

[1] Termination of parental rights requires proof by clear and convincing evidence of a statutory ground, that termination is in the child's manifest best interest, and that…

[2] Parents in dependency proceedings have a statutory right to be informed of their right to counsel at each stage and to have counsel appointed if they are indigent.

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Key Quotes

“before parental rights are terminated, the Department must prove by clear and convincing evidence one of the statutory grounds for termination, that termination is in the manifest best interests of the child, and that termination is the least restrictive means of protecting the child from serious harm”

Establishes the three-part test required for termination of parental rights

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Facts & Procedural History

The Department filed an emergency petition to reactivate protective services in December 2005 and a petition for involuntary termination of parental r…

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Opinion of the Court
SILBERMAN, Judge.

SILBERMAN, Judge.

J.C.-J., the Mother, appeals an order terminating her parental rights with respect to her daughter, C.J., on the grounds of abandonment. The Department and the Guardian ad Litem (GAL) concede that the evidence did not support that termination was in C.J.’s manifest best interest. In addition, the GAL concedes that the evidence did not support that the Mother abandoned C.J.

Our review of the record reflects that the Department and the GAL properly concede that the evidence was insufficient to support the termination of the Mother’s parental rights, and we reverse and remand for further proceedings. See M.D. v. Dep’t of Children & Family Serve. (In re D.D.), 879 So. 2d 10, 11 (Fla. 2d DCA 2004) (noting that before parental rights are terminated, the Department must prove by clear and convincing evidence one of the statutory grounds for termination, that termination is in the manifest best interests of the child, and that termination is the least restrictive means of protecting the child from serious harm). In so doing, we note our concern regarding the possible violation of the Mother’s due process rights in the trial court.

The Department filed various documents, including an emergency petition to reactivate protective services in December 2005 and a petition for involuntary termination of parental rights in June 2007. Although the trial court appointed counsel for the Mother in August 2007, prior to that time it appears that the Mother was not properly advised of her right to counsel at all appropriate stages. See § 39.018(1), Fla. Stat. (2005) (requiring the trial court to inform parents of their right to counsel in dependency proceedings at each stage of the proceedings and to appoint counsel for parents who are unable to afford counsel); § 39.402(5)(b)(2) (requiring that parents or legal custodians be given written notice of their right to be represented by counsel at the shelter hearing and at subsequent hearings or proceedings and that if they are indigent they have the right to appointed counsel); § 39.807(l)(a) (requiring the trial court to advise parents of their right to counsel at each stage of termination proceedings and to appoint counsel for indigent parents).

It also appears that significant orders and pleadings may not have been copied to the Mother. See J.B. v. Dep’t of Children & Family Servs., 768 So. 2d 1060, 1064 (Fla. 2000) (noting that parties are entitled to notice of government action and an opportunity to respond before termination of an interest).

Further, the Mother was not given the opportunity to work on a case plan and was not provided with any meaningful assistance in completing a case plan upon reactivation of the proceeding.

The record does not reflect that permitting the Mother to attempt to complete a case plan would have been a useless effort. See Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So. 2d 565, 571 (Fla.1991) (noting that prior to terminating parental rights the Department “ordinarily must show that it has made a good faith effort to rehabilitate the parent and reunite the family, such as through a current performance agreement or other such plan for the present child”).

Accordingly, we reverse the order terminating the Mother’s parental rights and remand for further proceedings. We caution the trial court to ensure that the Mother’s due process rights are observed during the proceedings.

Reversed and remanded.

STRINGER and KELLY, JJ., Concur.


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Citator

Cited By

  • …the trial court failed to (1) appoint counsel for an extended period of time when termination was at issue and (2) advise M.D. of her right to counsel or to obtain a record waiver of counsel. See, e.g., J.C.-J. v. Dep’t of Children & Family Servs., 987 So. 2d 828, 829 (Fla. 2d DCA 2008) (discussing • due process right to counsel at all appropriate stages in termination of parental rights proceedings and citing sections 39.013(1), 39.402(5)(b)(2), and 39.807(l)(a), Florida Statutes (2005), requiring trial cou…

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