E.F., In re

• Decision Date: 01 July 1994
• Docket Number: No. 93-00647,93-00647
• Citation: 639 So.2d 639
• Parties: 19 Fla. L. Weekly D1413 In re E.F., J.E.F., Jr., and X.T.D.W., Children. A.D., Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
• Court: Florida District Court of Appeals

Page 639

639 So.2d 639

19 Fla. L. Weekly D1413

In re E.F., J.E.F., Jr., and X.T.D.W., Children.

A.D., Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.

No. 93-00647.

District Court of Appeal of Florida,

Second District.

July 1, 1994.

Terry Clifton Christian, Tampa, for appellant.

Nancy B. Silva, Tampa, for appellee.

ALTENBERND, Judge.

The mother, A.D., appeals the trial court's order terminating her parental rights to two of her four children. In a perfect world, we would honor the mother's untimely and unperfected request that her children receive the aid of a guardian ad litem during such a proceeding. Although both the legislature and the supreme court have mandated the use of guardians ad litem in parental termination proceedings, our state has never implemented a program to provide an adequate supply of guardians. The program is primarily staffed by volunteers. At a time when the supply of volunteers is exceeded by the demands of children who would benefit from guardians, we cannot hold that a trial court commits fundamental error if it attempts, but is unable, to locate a volunteer guardian ad litem.

When a volunteer is unavailable, the trial court, in considering the best interests of the children, must rely on the methods used before the advent of the guardian ad litem program. Even if we were to conclude that the failure to appoint a guardian ad litem were error in this case, it appears that the error would be harmless. A guardian ad litem might have eased and speeded the children's trip through foster care, but it is highly unlikely that the guardian would have prevented this termination.

The facts in this case are far from unique. On the face of a cold record, these facts contain few emotions. The pleadings are repetitious and the standardized forms numb the reader's mind. But this is the story of three children who, for all practical purposes, were born into foster care and are now fast approaching their teenage years in that same system. We have every reason to hope that their foster parents have given these children good homes and much love. But we will never know with absolute certainty whether these children would have reached a point of stability much earlier, either with their mother or with new, adoptive parents, if they had received help from a guardian ad litem.

We relate the facts of this case in hopes that others will consider these children's experience in deciding whether steps should be taken to increase the supply of volunteer guardians, to prioritize the use of existing guardians, or to fund a limited supply of professional guardians ad litem.

I. TEN YEARS IN FOSTER CARE

A.D. gave birth to three children between August 1981 and May 1984. Two of the children share the same father; the youngest of these three children has another father. Apparently, a fourth child was born after 1984, but is not involved in these proceedings. The three children were first ordered into foster care on October 29, 1984, following their mother's incarceration. At that time, the children were 3 years, 15 months, and 5 months old. They were released to the custody of their aunt on November 5, 1984. On February 6, 1985, the children were again ordered detained because A.D. was incarcerated on charges of aggravated battery. Two days later, they were released to their mother. On February 14, 1985, however, the Department of Health and Rehabilitative Services (HRS) filed a petition for dependency on the basis of this aggravated battery, alleging that it had occurred in the presence of the children. Another detention petition was filed in March 1985, alleging that the mother had been ordered out of her boyfriend's house because she was on drugs and the children had been taken to a relative's house. Because the relative was unwilling to provide for them, the children were ordered into shelter on March 20, 1985.

As a result of these developments, the trial court appointed a guardian ad litem on April 9, 1985. Shortly thereafter, the trial court appointed an attorney to represent the mother. The children were declared dependent on May 23, 1985, when they were ages 3 1/2, 2 and 1. They were released into their mother's custody, under the supervision of HRS, conditioned upon her attending a parenting class, seeking appropriate housing and drug counseling, and keeping HRS informed of the family's residence. A few days later, the guardian ad litem was discharged with no objection from anyone involved in the case.

Four months later, on September 20, 1985, HRS filed another detention petition for the children on the basis that both their mother and aunt had been incarcerated, and their grandmother could not adequately care for them because she lived in a rooming house. They were placed in foster care in October 1985. For all practical purposes, this is the last time the children ever lived with their mother.

In October 1985, the trial court entered an order euphemistically entitled "Order Approving Permanent Placement Plan," which explained that the whereabouts of the two fathers were unknown and that the mother could not enter into a permanent placement plan because she was incarcerated.

A.D. visited the HRS office in early December 1985 after she had been released from jail. She explained that she had been placed on community control for two years and probation for one year. However, on January 7, 1986, the mother was arrested for armed robbery, and thereafter sentenced to one year and one day imprisonment. The children were returned to foster care.

In August 1986, the children were temporarily placed in the custody of a paternal aunt. Two months later, the youngest child, X.W., was removed from her custody and placed in foster care. The aunt had been unable to obtain necessary medical care for X.W. because this child was not her brother's child and, thus, she was not a legal relative.

A subsequent predispositional report filed September 28, 1992, reveals that on November 19, 1986, the mother was given a performance agreement for X.W. that expired in May 1987. She failed to comply with the requirements that she remain free from violations of the law and maintain suitable housing. She did find employment during that period and maintained contact with HRS until January 1987. In December 1986, she had a two-week visitation with X.W. But she was back in jail by March 1987.

In April 1987, E.F. and J.F., who had stayed with their aunt after X.W. was taken to a foster home, were also taken from the aunt's custody on the basis of neglect and placed in foster care. This was the last time that any of these children resided with a relative.

The mother entered into another performance agreement for the three children in June 1987. She maintained employment until October 1987, but failed to provide HRS with a substance abuse evaluation, and on Christmas Eve 1987 was again in jail. She entered into a third performance agreement, but failed to substantially comply with its terms. Her whereabouts were unknown from January to March 1988. She was once again found in prison, where she apparently remained for the 4 1/2 years prior to the termination hearing.

The years of 1989 and 1990 passed with the children in foster care and no significant progress for their permanent placement, either with their mother or elsewhere. ¹ A judicial review social study in April 1991 observed that these children were in need of a guardian ad litem. By this time, the three children were ages 9, 7, and 6. The oldest child was experiencing emotional problems, and the review suggested that this child should be placed in a "structured therapeutic residential setting." The trial court entered another order continuing the children in foster care. The record indicates no action on the suggestion that a guardian ad litem be appointed.

In September 1991, a judicial review social study again indicated a need for a guardian. As a result, the trial court entered an order in October 1991 authorizing the program coordinator for the Hillsborough County Guardian Ad Litem Program to designate a guardian. By this time, the youngest child who had left the mother as a baby, was nearly 7 1/2 years old and had lived with the same foster care family for four years.

By April 1992, no guardian had filed an appearance in the case, and the Guardian Ad Litem Program moved for discharge, explaining that it was mandated to request discharge if it was unable to assign a guardian within seven days. See Standard 4.1 of the Minimal Standards of Operation for the State of Florida Guardian Ad Litem Program, Supreme Court Administrative Order (Feb. 18, 1985). The trial court entered an order, without any objection in the record, discharging the program from further responsibility. This action appears to be the last effort to appoint a guardian for the three children.

HRS filed the petition for termination of parental rights on April 20, 1992, when the three children were approximately 10, 9, and 8. The trial court again appointed counsel to represent the mother. A lengthy evidentiary hearing was held in September. In December 1992, the trial court entered an order continuing the children in foster care pending completion of the termination proceeding. On January 21, 1993, the court entered an order terminating A.D.'s parental rights to the two younger children. The oldest child, then 11 years old, was in a home for emotionally disturbed children. The trial court decided that termination of A.D.'s parental rights was not in that child's best interests.

A.D. appealed the order of termination to this court in January 1993. The mother's attorney experienced difficulties obtaining a complete transcript from the court reporter. That attorney diligently pursued the problem, but the appeal was still delayed several months before an initial brief was filed in November 1993. Briefing was finished in February 1994, and this court scheduled the case...