Florida Legislature establishes right to counsel for certain dependent children

Certain children, including those with developmental disabilities, entitled to counsel

In 2014 the Florida Legislature passed HB 561, which created Fla. Stat. §  39.01305(3) and requires appointment of counsel for certain children in dependency and termination of parental rights cases, such as children with developmental disabilities, those residing in a skilled nursing facility, and children who are victims of human trafficking.  Unlike many other provisions in the section, Fla. Stat. §  39.01305(3) simply describes the person appointed as an attorney and not an “attorney ad litem.”  Thus, the appointed counsel presumably serves in a client-directed role.

New media outlet NationSwell discussed the law in an article titled Once Silent, Disabled Florida Kids Now Have Someone Speaking on Their Behalf.

As to all other children

Mandatory appointment of guardian ad litem

A bill enacted in 2024, SB 1224, mandates that the court appoint a guardian ad litem (GAL) for all children in abuse and neglect proceedings.  Fla. Stat. § 39.013(11) now provides,

The court shall appoint a guardian ad litem at the earliest possible time to represent a child throughout the proceedings, including any appeals.  The guardian ad litem may represent the child in proceedings outside of the dependency case to secure the services and benefits that provide for the care, safety, and protection of the child.

However, the GAL need not be an attorney. See Fla. R. Juv. P. Rule 8.215(b) (“The guardian ad litem must be a responsible adult, who may or may not be an attorney…”); see also Fla. Stat. § 39.01(32), defining “Guardian ad litem” similarly; but see Fla. Stat. § 39.8296(b)(7) (detailing the responsibilities of the Statewide Guardian ad Litem Office, which include “ensur[ing] that each child has an attorney assigned to his or her case and, within available resources, is represented using multidisciplinary teams that may include volunteers, pro bono attorneys, social workers, and mentors.”).

Discretionary appointment of attorney ad litem

A law enacted in 2020 expanded the existing law governing appointment of counsel for children in Florida. Fla. R. Juv. P. Rule 8.217(a), which covers both dependency and termination of parental rights, provides, “At any stage of the proceedings, any party may request or the court may consider whether an attorney ad litem is necessary to represent any child alleged to be dependent, if one has not already been appointed”, while 8.217(b) adds, “The court may appoint an attorney ad litem to represent the child in any proceeding as allowed by law.”

Legislature’s goals regarding dependent children

SB 1224 also made conforming changes to the statutory provision detailing the legislature’s goals for dependent children, which now provides:

The Legislature finds that the design and delivery of child welfare services should be directed by the principle that the health and safety of children, including the freedom from abuse, abandonment, or neglect, is of paramount concern and, therefore, establishes the following goals for children in shelter or foster care: … To have a guardian ad litem appointed and, if appropriate, an attorney ad litem; the guardian ad litem or attorney ad litem, if one is appointed, have immediate and unlimited access to the children they represent.

Fla. Stat. § 39.4085(1)(t).

Repealed: Right to attorney for children who are the subject of permanent custody proceedings whose caregiver objects to change in custody

Previously, pursuant to Fla. Stat. § 39.522(3)(c)(4)(b), the court was required to appoint an attorney for a child at an initial case status hearing, which was to be scheduled “[w]ithin 7 days after receiving written notice from the [child’s] caregiver” of the caregiver’s objection to the department’s official position on the change of physical custody.

However, this provision was revoked in 2024, by enactment of SB 1224.