D. B., In Interest of, 56237

• Court: United States State Supreme Court of Florida
• Writing for the Court: OVERTON; ENGLAND, C. J., ADKINS, BOYD, SUNDBERG and ALDERMAN, JJ., and VANN
• Citation: 385 So.2d 83
• Parties: In the Interest of D. B. and D. S.
• Docket Number: No. 56237,56237
• Decision Date: 16 May 1980

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385 So.2d 83 In the Interest of D. B. and D. S. No. 56237. Supreme Court of Florida. May 16, 1980.

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Jim Smith, Atty. Gen., and Janet E. Ferris, Asst. Atty. Gen., Tallahassee, for State of Florida, appellant.

Stuart Simon, County Atty., and Mark A. Dresnick, Asst. County Atty., Miami, for Dade County.

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Melvin S. Black, Miami, for Robert Singer and Robert Smith.

John B. Kelley, Chairman and Jennifer Hurst, Dade County Bar Ass'n, Circuit Court-Juvenile Committee, Miami, for intervenor.

OVERTON, Justice.

This appeal by the State of Florida is from circuit court orders directing the state to pay attorney's fees for representation of both indigent children and parents in all juvenile dependency proceedings. The orders by the circuit court held that the state must provide this legal representation as a fundamental constitutional right under the due process clause of the Florida Constitution and the United States Constitution. This finding was based on the decision of the United States District Court for the Southern District of Florida in Davis v. Page, 442 F.Supp. 258 (S.D.Fla.1977).

The holding of the circuit court in the instant cases directly construed the Florida and the United States Constitutions. The circuit court order, which was precipitated by the federal district court decision, affects all juvenile dependency proceedings in Dade County, which total approximately 2,000 annually, and could affect the 20,000 annual dependency proceedings statewide. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

We reject the holdings of both the state circuit court and the United States District Court that all indigent participants in juvenile dependency proceedings are entitled, as a fundamental right, to have counsel supplied to them by the state. We find that a constitutional right to counsel necessarily arises where the proceedings can result in permanent loss of parental custody. 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). We recognize that in all instances the trial court must ensure that proper notice and an opportunity to be heard be provided to the participants. We find that when counsel is constitutionally required, the county, rather than the state, must compensate appointed counsel under a formula which recognizes both the obligation of the government to provide counsel and the obligation of the legal profession to represent the poor. As a result of these findings, we direct the judiciary of this state to follow the views expressed in this opinion rather than the views expressed by the United States District Court in Davis v. Page. We find that the federal district court should have refrained from passing on this new constitutional right and allowed the claim to be presented in the state system.

Factual Circumstances

To fully explain these conclusions, it is necessary to set forth the specific facts of each of these two separate dependency causes.

At age five D. B. was surrendered by her mother to Catholic Services Bureau, Inc., for permanent commitment and adoption. The mother had been a prostitute and a heroin addict, and the child was born with a heroin addiction. The natural father was never married to the mother. At the time of the commitment proceedings, the father was incarcerated in the Florida state prison system for burglary, and was wanted in New Jersey for violation of parole. Approximately four months after surrender of the child, the mother sought to set aside her surrender of the child. In the trial court proceedings she was represented by Legal Services of Greater Miami, Inc. That representation is not in issue in these proceedings. Both the natural mother and the natural father sought custody of the child. The trial court appointed private counsel to represent the imprisoned father of this child, and appointed another private counsel as guardian ad litem for the child. The trial court found both natural parents to be unfit, stating:

(T)he Court finds that the said (mother) and (father) are unfit by reason of conduct, lifestyles and circumstances which have resulted in actual and constructive abandonment, abuse and neglect of the

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child, and it is manifestly in the best interest of the child that the parental rights of the natural parents . . . be terminated.

Following the entry of this judgment, the trial court entered an order directing the State of Florida to pay $1,090 to the attorney representing the father of the child and $1,000 to counsel acting as guardian ad litem for the child.

The second dependency action, for D. S., commenced when the child was nine months old because the child's mother, age 16, had abandoned him at his grandmother's home and was threatening to burn down the grandmother's house. The sixteen-year-old mother was taken into custody and detained in the juvenile detention center. Temporary custody of the child was sought by the Department of Health and Rehabilitative Services (HRS). Private counsel was appointed to represent the indigent mother in these temporary custody dependency proceedings. In addition, separate private counsel was appointed guardian ad litem for the child. The trial court found the child dependent and committed him to the temporary custody of HRS, with the understanding that the child eventually would reside with the teenage mother. This custody was subject to the continuing supervision of HRS to ensure proper care of the child. Subsequent to the entry of this temporary order and upon motion of appointed counsel, the trial court directed the State of Florida to pay $400 to counsel for the teenage mother and $285 to the guardian ad litem for the nine-month-old child.

In his order directing payment of attorney's fees in the instant cases, the trial court held:

The Judges of the Juvenile and Family Division of the Eleventh Judicial Circuit were named as defendants in a federal class action styled Davis v. Page, 442 F.Supp. 258 (S.D.Fla.1977). The plaintiffs in that suit were Hilary Davis and all indigent parents who have been, or may be, defendants in child dependency proceedings in the Juvenile and Family Division of the Circuit Court of Dade County, Florida and who have not been advised of their right to counsel or afforded counsel at state's expense. The United States District Court entered judgment in favor of the plaintiffs and against the judges of this Court, and held that indigent parents have a constitutional right to appointed counsel in dependency proceedings. . . . (T)his Court must comply with the judgment of the federal court until and unless the decision is reversed or vacated, nothwithstanding (sic) the fact that the Florida Supreme Court has reached a contrary conclusion in Potvin v. Kelley (sic), 313 So.2d 703 (Fla.1975). See U. S. Constitution, Art. VII, Cl. 2. This Court, therefore, holds that unless Davis v. Page is reversed on appeal, all indigent parents in dependency proceedings brought in this Court pursuant to Chapter 39, Florida Statutes, have a right to appointed counsel.

As a result of Davis v. Page, this Court also appoints attorneys as guardians ad litem to represent children of indigent parents in dependency proceedings when the Court determines that the appointment of a guardian ad litem is necessary to protect the child's interests. The Court is mindful that the Florida Supreme Court has held that the constitutional right to counsel is mandatory only in juvenile proceedings which concern a possible adjudication of delinquency. In the Interest of Hutchins, 345 So.2d 703 (Fla.1977). Hutchins, however, cannot be controlling since this Court is now required by Davis to provide counsel to indigent parents in dependency proceedings. It is inconceivable to this Court that while it is required to appoint counsel for indigent parents in dependency proceedings, that an indigent child, whose interests may be adverse to the desires of his parents and the State, would not have an attendant right to appointed counsel. Since the Court is required to provide counsel for parents, the Court therefore holds that unless Davis is reversed on appeal, the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution as

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well as the due process provisions contained within Article I, Section 9 of the Florida Constitution, require the Court to appoint counsel to serve as guardians ad litem for children in dependency proceedings when the Court finds that such an appointment is necessary in order to protect the intersts (sic) of the child. . . . (Emphasis supplied.)

No better hypothetical script could have been written to set forth the problems of dependent children than is illustrated by these two factual situations. The principal issues are what legal representation is constitutionally required, and in what manner attorneys should be compensated when appointed to represent indigent parties in dependency matters.

Right to Counsel

The right of an indigent party to have counsel furnished in a legal proceeding is dependent upon the nature of the proceeding. This is an evolving constitutional issue which concerns the application of the sixth and fourteenth amendments of the United States Constitution.

In a series of well-publicized cases, the United States Supreme Court has found that a constitutional right to government-furnished counsel is mandated whenever imprisonment can be imposed. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)(right to counsel in a death case); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (right to counsel for noncapital serious offenses); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (right to counsel in juvenile delinquency proceedings where the issue concerned the commitment...