Right to counsel

Key_development Question_mark

Litigation, Termination of Parental Rights (Private) - Birth Parents

In a decision that involved the termination of a father’s parental rights pursuant to a contested adoption proceeding, the court of appeals in the Second District found that “an indigent legal parent is entitled to appointed counsel in an adoption proceeding that involves the involuntary termination of his or her parental rights[.]”  O.A.H. v. R.L.A., 712 So. 2d 4, 4 (Fla. Dist. Ct. App. 1998).  In O.A.H., the court found that although the applicable statute pursuant to which the father’s parental rights were to be terminated (Fla. Stat. § 63.072) (repealed in 2001) did not contain an express statutory right to counsel, id. at 5, under Florida’s Due Process Clause, the father was nonetheless entitled to counsel, “when the proceedings can result in a permanent loss of parental rights.”  Id. at 7. 


In reaching its decision, the court in O.A.H. also found that an adoption proceeding, and the resulting termination of parental rights, is not purely a private dispute and that the State has exclusive authority to terminate the legal relationship of a parent and child, and that this authority is a “state action sufficient to invoke due process concerns.”  Id. at 6.  Regarding state action, the court relied upon U.S. Supreme Court precedent in M.L.B. v. S.L.JSee id. (citing 519 U.S. 102, 117 n.8 (1996)). 

See also M.E.K. v. R.L.K., 921 So. 2d 787, 790 (Fla. Dist. Ct. App. 2006) (Fifth District holds that trial court in adoption case erred in following Lassiter instead of O.A.H.); In re M.C., Jr., 899 So. 2d 486, 487 (Fla. Dist. Ct. App. 2005) (reaffirming O.A.H.); G.C. v. W.J., 917 So. 2d 998, 999 (Fla. Dist. Ct. App. 2005) (First District case where court followed O.A.H.).

Appointment of Counsel: categorical Qualified: yes