J.B. v. Department of Children and Family Services, 97-350

• Decision Date: 31 December 1997
• Docket Number: No. 97-350,97-350
• Citation: 703 So.2d 1208
• Parties: 23 Fla. L. Weekly D129 J.B., Father of J.B., Jr., J.B., P.B., B.B., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
• Court: Florida District Court of Appeals

Page 1208

703 So.2d 1208

23 Fla. L. Weekly D129

J.B., Father of J.B., Jr., J.B., P.B., B.B., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.

No. 97-350.

District Court of Appeal of Florida First District.

Dec. 31, 1997.

Joyce Sibson Dove, Tallahassee, for Appellant.

Teresa A. Kramer, Child Welfare Attorney, Department of Children and Family Services, Tallahassee, for Appellee.

McCAULIE, Associate Judge.

Appellant appeals a judgment terminating his parental rights to four of his children. The Department of Health and Rehabilitative Services ¹ served the father with an amended petition for termination of parental rights on October 29, 1996. The advisory hearing was conducted the next day, October 30, 1996 at 9:00 a.m. The father did not attend the advisory hearing. Based upon his failure to appear, the court entered a consent on his behalf to the petition by default. See § 39.462(1)(d), Fla. Stat. (1995). An adjudicatory hearing was scheduled for December 11, 1996. The father appeared at that hearing and expressed his objection to the termination of parental rights and requested counsel. The court denied his request and continued on with the hearing which resulted in the judgment appealed. The trial court's procedure failed to comply with section 39.465(1)(a), Florida Statutes (1995), and the judgment must therefore be reversed.

When the father appeared at the adjudicatory hearing, the court and the father entered into the following colloquy:

THE COURT: --- parental rights. That petition was served on you personally. You failed to appear. On there it says that if you fail to appear it will be deemed a consent. So we entered a consent to the termination of parental rights for you. Now that may be okay with you. It is with many here. And some it is not. So I just want to know ---

MR. JAMES BRYANT, SR.: It's not okay with me.

THE COURT: Did you bring an attorney here today.

MR. JAMES BRYANT, SR.: No. I asked could they appoint me an attorney, but they never did.

THE COURT: When was that?

MR. JAMES BRYANT, SR.: It was the last time I was here. They said something about I didn't need an attorney.

THE COURT: Okay. It may have been before the goals changed of termination, I don't know. Do you remember being served papers?

MR. JAMES BRYANT, SR.: Right, it was the day before the court date.

Later in the proceeding, the father stated his basic objection to the termination and his continued request for legal assistance.

MR. JAMES BRYANT, SR.: Yes. The only thing I said I had been dealing with HRS for like the last eight years. See, they will tell me something and then I start working and then it looks like they'll tell me something else. I just lose interest then. So I don't know what they want me to do, that's why I asked for a lawyer, somebody who could represent me. See I'm dealing against lawyers it seems like and I can't fight a lawyer. I'm not a lawyer.

THE COURT: Okay. Well, I'm going to regard--you, of course, are free to walk into this courtroom with an attorney that you have hired to represent you and you never lose that right, but I don't find that you qualify for a court appointed lawyer given your consent, at least as of today at this moment and the lateness of the possible request that you necessarily need it for today.

Section 39.465(1)(a) provides: "At each stage of the proceeding under this part, the court shall advise the parent ... of the right to have counsel present. The court shall appoint counsel for insolvent persons." (emphasis supplied). Further section 39.465(1)(b)3. provides that "the offer of assistance of counsel must be renewed at each subsequent stage of the proceedings at which the parent ... appears without counsel." (emphasis supplied). Finally, section 39.467(...