G.C. v. W.J.

District Court of Appeal of Florida

G.C. v. W.J.

917 So. 2d 998, 2005 Fla. App. LEXIS 20364

District Court of Appeal of Florida·Decided December 30, 2005·No. No. 1D05-2103·Published·Cited by 5 cases

Opinion

HAWKES, J.

Appellant is the incarcerated, unmarried biological father of Baby Girl Jones. He argues indigence and that the trial court erred by denying him the assistance of appointed counsel in responding to Appel-lees’ petition to terminate his parental rights under chapter 68, Florida Statutes (2008). We agree and reverse.

Appellant made two separate requests for counsel.¹ In denying the second request, the trial court concluded chapter 63 does not require it to advise Appellant of his right to counsel or to appoint him counsel. Although it is true that chapter 63, unlike chapter 39, does not expressly provide for appointed counsel, such an entitlement is inherent where fundamental parental rights are subject to termination. See In the Interest of D.B., 385 So.2d 83, 91 (Fla.1980) (holding counsel is necessarily required under the due process clause of the Florida and Federal Constitutions in proceedings involving permanent termination of parental rights); see also O.A.H. v. R.L.A., 712 So.2d 4 (Fla. 2d DCA 1998) (reversing an order terminating an incarcerated father’s parental rights under chapter 63 where the father’s request for counsel was denied).

Accordingly, the order terminating Appellant’s parental rights and the final judgment of adoption are reversed² and the case is remanded. On remand, the trial court should: (1) Verify Appellant’s Affidavit of Indigency and appoint him counsel if he qualifies; (2) Allow the appointed counsel a reasonable opportunity to assist Appellant in complying with any statutory obligations; and (3) Hear anew the petition to terminate Appellant’s parental rights.

REVERSED and REMANDED for proceedings consistent with this opinion.

BENTON and POLSTON, JJ., concur.

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HAWKES, J.

Appellant is the incarcerated, unmarried biological father of Baby Girl Jones. He argues indigence and that the trial court erred by denying him the assistance of appointed counsel in responding to Appel-lees’ petition to terminate his parental rights under chapter 68, Florida Statutes (2008). We agree and reverse.

Appellant made two separate requests for counsel.¹ In denying the second request, the trial court concluded chapter 63 does not require it to advise Appellant of his right to counsel or to appoint him counsel. Although it is true that chapter 63, unlike chapter 39, does not expressly provide for appointed counsel, such an entitlement is inherent where fundamental parental rights are subject to termination. See In the Interest of D.B., 385 So.2d 83, 91 (Fla.1980) (holding counsel is necessarily required under the due process clause of the Florida and Federal Constitutions in proceedings involving permanent termination of parental rights); see also O.A.H. v. R.L.A., 712 So.2d 4 (Fla. 2d DCA 1998) (reversing an order terminating an incarcerated father’s parental rights under chapter 63 where the father’s request for counsel was denied).

Accordingly, the order terminating Appellant’s parental rights and the final judgment of adoption are reversed² and the case is remanded. On remand, the trial court should: (1) Verify Appellant’s Affidavit of Indigency and appoint him counsel if he qualifies; (2) Allow the appointed counsel a reasonable opportunity to assist Appellant in complying with any statutory obligations; and (3) Hear anew the petition to terminate Appellant’s parental rights.

REVERSED and REMANDED for proceedings consistent with this opinion.

BENTON and POLSTON, JJ., concur.

G.C. v. W.J., 917 So. 2d 998, 2005 Fla. App. LEXIS 20364 (Fla. Ct. App. 2005).

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