B.C., In Interest of, 92-415

• Decision Date: 15 December 1992
• Docket Number: No. 92-415,92-415
• Citation: 610 So.2d 627
• Parties: 18 Fla. L. Week. D36 In the Interest of B.C., a child. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, v. Honorable J. Lewis HALL, Jr., as Circuit Judge of the Second Judicial Circuit, Respondent.
• Court: Florida District Court of Appeals

Page 627

610 So.2d 627

18 Fla. L. Week. D36

In the Interest of B.C., a child.

STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE

SERVICES, Petitioner, v. Honorable J. Lewis HALL, Jr., as Circuit Judge of the Second

Judicial Circuit, Respondent.

No. 92-415.

District Court of Appeal of Florida,

First District.

Dec. 15, 1992.

Rehearing Denied Jan. 21, 1993.

Thomas D. Koch, Assistant Legal Counsel, Dept. of Health and Rehabilitative Services, Panama City, for petitioner.

J. Gordon Shuler, of Shuler and Shuler, Apalachicola, for respondent.

WIGGINTON, Judge.

The Department of Health and Rehabilitative Services has filed a petition for writ of certiorari seeking review of an order entered by the circuit court awarding attorney's fees to appointed counsel to be paid by the state in a proceeding for termination of parental rights. The Department contends the order is in error as it is the county's responsibility under these circumstances to pay attorney's fees and costs pursuant to section 43.28, Florida Statutes (1991). ¹

Initially, we conclude that this particular issue should be reviewed by plenary appeal, as one from a final order, and not by way of a petition for writ of certiorari. Accordingly, pursuant to Rule 9.040(c), Florida Rules of Appellate Procedure, we treat the instant petition for writ of certiorari as a notice of appeal and as the initial brief. See Department of Health and Rehabilitative Services v. Brooke, 573 So.2d 363 (Fla. 1st DCA 1991); Department of Health and Rehabilitative Services v. C.G., 556 So.2d 1243 (Fla. 5th DCA 1990).

Turning to the merits, we agree with the Department's position that section 43.28, as interpreted by the Florida Supreme Court in In the Interest of D.B., 385 So.2d 83 (Fla.1980), places on the county the burden of payment for appointed counsel in proceedings for the termination of parental rights under present section 39.465, Florida Statutes (1991). We also agree with the Department that newly-adopted section 18 of Article VII, Florida Constitution, does not change the meaning and operation of the law or the fundamental relationship between Article V and section 43.28 as explicated in D.B. ² Indeed, the language of section 18 is clearly prospective in operation. For example, subsection (d) exempts "laws reauthorizing but not expanding then-existing statutory authority, laws having insignificant fiscal impact, and laws creating, modifying, or repealing non-criminal infractions." (Emphasis added) This language unmistakably implies that the operation of section 18(a) is targeted at laws to be passed in the future, after the effective date of the section. As urged by the Department, the only reasonable construction of Article VII, section 18 as a whole is that it is not applicable to existing section 43.28.

Accordingly, based on the foregoing, the order of the trial court directing that attorney's fees be paid by the Department is reversed and the cause is remanded so that an order may be...