JB v. FLA. DEPT. OF CHILDREN AND FAM. SERVICES

• Citation: 768 So.2d 1060
• Decision Date: 28 September 2000
• Docket Number: No. SC95890.,SC95890.
• Parties: J.B., Petitioner, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Respondent.
• Court: United States State Supreme Court of Florida

768 So.2d 1060

J.B., Petitioner, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Respondent.

No. SC95890.

Supreme Court of Florida.

September 28, 2000.

Joyce Sibson Dove, Tallahassee, Florida, for Petitioner.

Charles A. Finkel, District Legal Counsel, Tallahassee, Florida, for Respondent.

HARDING, J.

We have for review J.B. v. Department of Children & Family Services, 734 So.2d 498 (Fla. 1st DCA 1999), on the basis of express and direct conflict with a number of other district court cases which hold that important rights cannot be adjudicated when a party has received only twenty-four hours' notice of the hearing.¹ We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTS

As stated in the First District's opinion, the facts of this case are as follows:

The history of this controversy dates back to November 15, 1988, when the state filed a petition to declare each of the natural father's five children dependent. At that time, the father consented to a finding of dependency, and all of the children were placed in the custody of their grandmother. The dependency file was closed in September of 1990, and the children remained with their grandmother.

In May of 1993, the father surrendered his parental rights to one of his children, T.B., with the advice of appointed counsel. The remaining four children were removed from their grandmother's home on August 9, 1995, and placed in foster care. From that point forward, there were seven hearings on various matters, six of which the father failed to attend. One of the hearings he missed was a hearing on May 22, 1996, to discuss a change in the goal from reunification to a termination of parental rights.

The Department of Children and Family Services filed a petition on October 21, 1996, to terminate the father's rights to the four remaining children. This petition was served on the father by personal service in Tallahassee on October 29, 1996, at 7:55 a.m., along with a summons informing the father that he was to attend an advisory hearing on October 30, 1996, at 9:00 a.m. in Tallahassee. Because the father did not attend the advisory hearing or call to explain why he could not attend, the trial court entered a consent on his behalf under the provisions of section 39.462(1)(d), Florida Statutes [(1995)].

The first hearing the father attended in the course of the termination proceeding was the adjudicatory hearing in December 1996. At that time, the trial court explained that a consent had been entered at the advisory hearing but allowed the father to participate in the hearing. The father informed the court that he had only received twenty-four hours' notice of the prior hearing, that he had not read the petition until later in the week, that he had been sick on the day of the advisory hearing, and that he had only a ninth grade education. He asked the court to appoint counsel on his behalf. The trial court denied this request and declined to continue the case.

Following the adjudicatory hearing, the trial court rendered a final order terminating the father's parental rights. This order was appealed and reversed. In J.B. v. Department of Children and Family Services, 703 So.2d 1208 (Fla. 1st DCA 1997), this court remanded the case to the trial court, allowing the father to "attempt to set aside the consent by default and present evidence at an adjudicatory hearing." Id. at 1210.

A hearing was held in the trial court on March 23, 1998, at which time the court considered the father's request to set aside the consent. The father argued that he had not received reasonable notice of the advisory hearing and that the hearing was fatally flawed because an attorney was not appointed for him. The trial court denied the father's motion because he did not offer any valid excuse for his failure to appear. The court then rendered a second final order terminating the father's parental rights to the children.

J.B., 734 So.2d at 499-500 (footnote omitted).

The father appealed the second final order terminating parental rights to the district court, arguing that his due process rights were violated because he did not receive adequate notice of the advisory hearing. The district court concluded that although the notice should have been served further in advance, the twenty-four hours' notice was sufficient to meet minimum due process requirements:

An advisory hearing in a termination of parental rights case is merely a preliminary step in the process, at which no right is finally adjudicated. A parent is not required to prepare for an advisory hearing or to retain counsel in advance. All that is required of the parent is to appear at the hearing or to inform the court of the need for a postponement. In the present case, the father received the notice of the advisory hearing but did not inform the court that he would be unable to attend. Nor did he seek to excuse his absence at the advisory hearing at any point in the process before the final hearing.

Id. at 500. Accordingly, the district court held that there was no violation of the father's due process rights and affirmed the lower court's ruling. Id. at 502.

On review, the father asserts that his parental rights were terminated without full substantive and procedural due process protections. Specifically, he argues that (1) twenty-four hours' notice of the advisory hearing was insufficient to protect his due process rights; (2) the consent by default provision contained in section 39.462(1)(d), Florida Statutes (1995), is facially unconstitutional; and (3) the trial court's failure to appoint counsel during the December 11, 1996, adjudicatory hearing was in error. For the reasons expressed below, we hold that twenty-four hours' notice of an advisory hearing is insufficient to satisfy minimum due process requirements. We also find that the trial judge was in error for failing to appoint counsel during the adjudicatory hearing, which likewise resulted in a violation of the father's due process guarantees. However, we do not agree with the father's contention that the consent by default provision is facially unconstitutional.

ANALYSIS

Due Process

As stated by this Court in Department of Law Enforcement v. Real Property, 588 So.2d 957 (Fla.1991):

The basic due process guarantee of the Florida Constitution provides that "[n]o person shall be deprived of life, liberty or property without due process of law." Art. I, § 9, Fla. Const. Substantive due process under the Florida Constitution protects the full panoply of individual rights from unwarranted encroachment by the government. To ascertain whether the encroachment can be justified, courts have considered the propriety of the state's purpose; the nature of the party being subjected to state action; the substance of that individual's right being infringed upon; the nexus between the means chosen by the state and the goal it intended to achieve; whether less restrictive alternatives were available; and whether individuals are ultimately being treated in a fundamentally unfair manner in derogation of their substantive rights....

Procedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue. Procedural due process under the Florida Constitution guarantees to every citizen the right to have that course of legal procedure which has been established in our judicial system for the protection and enforcement of private rights. It contemplates that the defendant shall be given fair notice[] and afforded a real opportunity to be heard and defend [] in an orderly procedure, before judgment is rendered against him.

The manner in which due process protections apply vary with the character of the interests and the nature of the process involved. There is no single, inflexible test by which courts determine whether the requirements of procedural due process have been met.

Id. at 960 (emphasis added) (citations omitted).

The significance of the rights at issue here cannot be overstated. In Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the United States Supreme Court considered termination of parental rights procedures under New York law. At issue in Santosky was whether the "fair preponderance of the evidence" standard prescribed by the New York Family Court Act for the termination of parental rights violated the parents' due process rights. 455 U.S. at 747, 102 S.Ct. 1388. The Santosky Court made it clear that state intervention to terminate parental rights must be accomplished by procedures meeting the requisites of due process. As the Santosky Court explained, it is

"plain beyond the need for multiple citation" that a natural parent's "desire for and right to `the companionship, care, custody, and management of his or her children'" is an interest far more precious than any property right.... "A parent's interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one."

455 U.S. at 758, 102 S.Ct. 1388 (quoting Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)). Moreover, the Supreme Court stated that the fundamental liberty interest a parent has in the custody and care of his or her child "does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." Id. at 753, 102 S.Ct. 1388.

While there is no laundry list of specific procedures that must be followed to protect due process guarantees, an analysis of the United States Supreme Court's prior decisions identifies certain procedures that are typically required before an individual can be deprived of a property or liberty interest. In all situations, the Court has required fair procedures and an unbiased decisionmaker. Additionally, the Court has also required notice of the government's action and an opportunity to respond before...