JUSTICE ADMINISTRATIVE COMMISSION, PETITIONER,
v.
OSA J. HARP, IV, ESQUIRE, RESPONDENT

Fla. 5th DCA | 2009-12-31
No. 5D09-3058
GRIFFIN and PALMER, JJ., concur.
24 So. 3d 779 Florida District Court of Appeal, Fifth District (2009) Positive Treatment
Cited by 8 cases

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Holding

A parent who voluntarily executes a written surrender of parental rights is not entitled to court-appointed counsel in a termination proceeding, and the Justice Administrative Commission is not required to pay for such counsel.


Headnotes

[1] A parent who has voluntarily executed a written surrender of parental rights is not entitled to court-appointed counsel in a termination of parental rights proceeding.

[2] A court lacks the authority to appoint counsel for a parent who has executed a voluntary written surrender of parental rights.

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Facts & Procedural History

The mother voluntarily surrendered her parental rights in writing before a termination of parental rights proceeding was initiated. Despite this, the …

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Opinion of the Court
ORFINGER, J.

ORFINGER, J.

The Justice Administrative Commission (JAC) seeks certiorari review of an order requiring it to pay the attorney’s fees of a mother’s court-appointed private counsel in a termination of parental rights proceeding. Because the mother executed a voluntary written surrender of her parental rights pursuant to section 39.806(l)(a), Florida Statutes (2008), before the termination proceedings were initiated, she was not entitled to publicly-funded counsel. Consequently, the order appointing counsel, and more specifically, the order requiring the JAC to pay appointed counsel, was error. As a result, we grant the petition and quash the circuit court’s order.1

Osa J. Harp, IV, was appointed to represent the mother in a dependency case. While the dependency case was ongoing, the mother voluntarily surrendered her parental rights in writing. The Department of Children and Families then filed a termination action, and the trial court appointed Mr. Harp to represent the mother. After the termination case was concluded, Mr. Harp petitioned the trial court for fees. The JAC objected, arguing that because the mother voluntarily executed a written surrender of parental rights, she had no right to court-appointed counsel. Nevertheless, the trial court ordered the JAC to pay Mr. Harp a fee for representing the mother during the termination proceeding.2

Section 29.007(2), Florida Statutes (2009), authorizes the JAC to pay attorney’s fees to private attorneys appointed by the court to represent indigents or other litigants in civil proceedings that require court-appointed counsel in accordance with state and federal constitutional guarantees or statutes. See also § 27.40, Fla. Stat. (2009). Section 39.807(1), Florida Statutes (2009), which establishes the statutory right to appointed counsel in termination proceedings, provides:

39.807. Right to counsel; guardian ad litem.
(l)(a) At each stage of the proceeding under this part, the court shall advise the parent of the right to have counsel *781present. The court shall appoint counsel for indigent parents....
(d) This subsection does not apply to any parent who has voluntarily executed a written surrender of the child and consent to the entry of a court order therefor.

§ 39.807(l)(a),(d), Fla. Stat. (2009).3 By its plain language, section 39.807(l)(d) does not authorize the court to appoint counsel to a parent who has executed a voluntary written surrender of his or her parental rights. When the language of the statute is plain and not ambiguous, the statute must be interpreted in accordance with that plain language. See generally State v. Bradford, 787 So.2d 811, 817 (Fla.2001).

Nothing in the record before us suggests that the voluntariness of the mother’s surrender of parental rights was in question or that the mother sought to set aside her consent prior to the entry of the final order terminating her parental rights. In that instance, the JAC concedes an indigent parent would be entitled to court-appointed counsel. However, under the circumstances presented here, the circuit court had no authority to appoint counsel for the mother, and the JAC is not required to pay any attorney’s fees for the termination proceeding.4

We conclude the trial court’s order departed from the essential requirements of law, grant the petition for writ of certiorari and quash the order under review.

CERTIORARI GRANTED; ORDER QUASHED.

GRIFFIN and PALMER, JJ., concur.


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Citator

Cited By

  • Just. Admin. Comm'n v. Gayden, 28 So. 3d 162 (Fla. 5th DCA 2010)
    …Hammel, 575 So. 2d 772, 773 (Fla. 5th DCA 1991). Therefore, we quash the order awarding attorney’s fees so that a hearing may be held. We also direct the circuit court’s attention to the recent opinions of Justice Administrative Commission v. Harp, 24 So. 3d 779, (Fla. 5th DCA 2009) (holding that circuit court lacked statutory authority to appoint counsel for mother who voluntarily executed a written surrender of parental rights; JAC not required to pay counsel for mother’s legal representation at the termi…
  • Just. Admin. Comm'n v. Goettel, 32 So. 3d 786 (Fla. 2d DCA 2010)
    …lstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 889 (Fla.2003). In a similar case, the Fifth District held that an order erroneously requiring the JAC to pay for improperly appointed counsel met this stringent standard. Justice Admin. Comm’n v. Harp, 24 So. 3d 779 (Fla. 5th DCA 2009). We agree that this error warrants relief and quash the order on review. Petition for writ of certiorari granted; order quashed. NORTHCUTT and MORRIS, JJ., Concur.…
  • Just. Admin. Comm'n v. Biecker, 33 So. 3d 827 (Fla. 5th DCA 2010)
    …oper notice, she was deemed to have consented to the termination of her parental rights. As a result, she was not entitled to publicly-funded counsel. Justice Admin. Comm’n v. Gayden, 28 So. 3d 162 (Fla. 5th DCA 2010); Justice Admin. Comm’n v. Harp, 24 So. 3d 779 (Fla. 5th DCA 2009); Justice Admin. Comm’n v. Berry, 5 So. 3d 696 (Fla. 3d DCA 2009). Thus, the order requiring the JAC to pay attorney Michele Biecker was erroneous. The JAC’s petition is granted and the order requiring it to pay attorney’s fees to…

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