Right to counsel

In In Interest of D.B., 385 So. 2d 83 (Fla. 1980), the Florida Supreme Court found that due process under both the Florida and U.S. Constitutions requires the appointment of counsel where child dependency proceedings could result in the permanent loss of parental custody (i.e., are essentially combined with a termination proceeding) or where “the proceedings, because of their nature, may lead to criminal child abuse charges.”  In all other circumstances, “The constitutional right to counsel is not conclusive; rather, the right to counsel will depend upon a case-by-case application of the test adopted in Potvin v. Keller, 313 So.2d 703 (Fla. 1975).”  The Potvin court instructed courts to weigh various criteria when determining the need for counsel, including the potential length of parent-child separation, the degree of parental restrictions on visitation, whether there was parental consent, whether there were disputed facts, and the complexity of the proceeding.

Since the U.S. Supreme Court’s decision in Lassiter, the Florida Supreme Court has, reaffirmed its view that, when termination of parental rights are at stake, the state constitution’s due process provision always mandates appointment of counsel for the parent. See  J.B. v. Fla. Dep’t of Children & Families, 170 So. 3d 780, 789-90 (Fla. 2015).  This suggests that the dependency portion of D.B. is also intact.

An intermediate court found that due process required counsel to be provided in a dependency proceeding even when termination of parental rights was not at stake when the indigent parent was mentally ill and thus lacked the ability to represent herself effectively. L.W. v. Dep’t. of Health & Rehab. Servs., 695 So. 2d 724, 726-27 (Fla. Dist. Ct. App. 1996).  And in White v. Department of Health and Rehabilitative Services, 483 So. 2d 861 (Fla. App. 1986), the court found that the parents at issue were entitled to appointed counsel at every stage of the dependency proceedings where their admissions during the dependency proceeding “resulted in an adjudication of their abuse and neglect (which are two grounds for permanent commitment) and resulted in placement of the twins in a foster home where lack of parental visitation resulted in a charge of abandonment (a third ground for permanent commitment) and resulted in a performance agreement (the failure to perform being a fourth ground for permanent commitment).”