Florida court: adoption agencies can't challenge parents' right to counsel

07/30/2018, Litigation, Termination of Parental Rights (Private) - Birth Parents

In In Interest of D.B., 385 So. 2d 83 (Fla. 1980), the Supreme Court of Florida recognized a state constitutional right to counsel for parents in child welfare termination of parental rights proceedings, but it provided a caveat by stating, “We reject [] any requirement for the mandatory appointment of counsel for the father of an illegitimate child who has not legally acknowledged or in fact supported the child.”  Subsequent decisions by several courts of appeals extended the right to counsel to parents in adoption cases, and then the question arose about such a right where the biological father is unmarried to the mother and fails to comply with Fla. Stat. 63.062(3)(a), which requires an unmarried biological father to take certain steps within 30 days of receiving service of the intended adoption plan (and the statute directs the trial court to enter a default judgment whether the father fails to comply).


In Gift of Life Adoptions v. S.R.B., 2018 Fla. App. LEXIS 10512 (Fla. App. 2018) (Second District), a father had failed to comply with § 63.062(3)(a) but the trial court had held it was duty bound to appoint the father counsel for the termination hearing, based on the dicta from S.C.  The adoption agency filed a certiorari petition, arguing the appointment was invalid given the father’s failure to meet the statutory requirements and that the decision visited “material injury” by delaying the adoption. The Court of Appeals responded:


[The adoption agency] has not cited, and we have not located, a single published decision where a court has construed a lawyer's representation to be, in and of itself, a cognizable, much less irremediable, injury in a termination of parental rights proceeding. Quite the contrary, whatever delay the presence of an opposing attorney could be said to entail, Florida law recognizes that indigent parents are entitled to court-appointed counsel in a proceeding to terminate their parental rights ... And the premise behind GLA's argument in this petition—that the presence of a lawyer for a putative father in a contested termination of parental rights proceeding constitutes a material injury—strikes us as rather troubling. See generally Penson v. Ohio, 488 U.S. 75, 84, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988) ("The paramount importance of vigorous representation follows from the nature of our adversarial system of justice. This system is premised on the well-tested principle that truth—as well as fairness—is 'best discovered by powerful statements on both sides of the question.'" (quoting Irving R. Kaufman, Does the Judge Have a Right to Qualified Counsel?, 61 A.B.A.J. 569, 569 (1975) (quoting Ex Parte Lloyd (1822) Mont 70, 72n))); Fla. Bar v. Dove, 985 So. 2d 1001, 1010 (Fla. 2008) ("Lawyers who undertake representation in the vital areas of adoption, dependency, and delinquency and in other family law cases serve interests which have unexcelled importance in the law."). We are loathe to view what is a hallmark of adversarial proceedings in our judicial system as a material injury in this context.