Justice Administrative Com'n v. Berry

• Citation: 5 So.3d 696
• Decision Date: 04 February 2009
• Docket Number: No. 3D08-2266.,No. 3D08-2541.,3D08-2541.,3D08-2266.
• Parties: The JUSTICE ADMINISTRATIVE COMMISSION, etc., Petitioner, v. Maria BERRY and Manuel F. Garcia, Respondents.
• Court: Court of Appeal of Florida (US)

5 So.3d 696

The JUSTICE ADMINISTRATIVE COMMISSION, etc., Petitioner, v. Maria BERRY and Manuel F. Garcia, Respondents.

No. 3D08-2541.

No. 3D08-2266.

District Court of Appeal of Florida, Third District.

February 4, 2009.

Rehearing and Rehearing En Banc Denied April 22, 2009.

Stephen M. Presnell, General Counsel, and Christian D. Lake, Assistant General Counsel, for petitioner.

Kevin G. Thomas, for respondents.

Before WELLS, SHEPHERD, and SUAREZ, JJ.

WELLS, Judge.

In these separate petitions for writ of certiorari, the Justice Administrative Commission seeks review of two final orders directing it to pay attorneys' fees to two attorneys, Manuel Garcia and Maria Berry, for representing putative fathers in separate termination of parental rights ("TPR") proceedings. We consolidate the petitions for purposes of review and grant the petitions, finding that the trial court departed from the essential requirements of the law in ordering the Commission to pay attorneys' fees where indigency was not, because it could not be, determined. See Anderson v. E.T., 862 So.2d 839, 840 (Fla. 4th DCA 2003) (stating that a petition for writ of certiorari is the proper method for reviewing orders awarding attorney's fees to court-appointed counsel).

The facts in both of these cases are substantially the same. In both cases, the Department of Children and Families filed petitions to terminate the parental rights of fathers whose whereabouts could not be determined. Because their whereabouts were unknown, both fathers were served with TPR petitions and noticed of statutorily mandated advisory hearings by publication. See § 39.801(3)(a), Fla. Stat. (2007) (providing that before parental rights may be terminated, notice of an advisory hearing for the petition and a copy of the petition must be personally served on the parents of the child at issue); § 39.801(3)(b), Fla. Stat. (2007) (providing that if notice cannot be served personally, "service of process must be made as specified by law or civil actions"); Fla. R. Juv. P. 8.505(c) (providing for service by publication in termination of parental rights proceedings for "[p]arties whose identities are known and on whom personal service of process cannot be effected").

In each case, the fathers failed to appear at an advisory hearing and were deemed to have consented to termination of their parental rights. See § 39.801(3)(d), Fla. Stat. (2007) (providing that failure to personally appear at an advisory hearing following notice constitutes consent to termination of parental rights). Despite the fact that neither father appeared at an advisory (or any other) hearing, both were found to be indigent and had counsel appointed to represent them in their respective TPR proceedings. The orders appointing counsel were then forwarded to the Commission.

Following termination of these fathers' parental rights, the attorneys appointed to represent them, Mr. Garcia and Ms. Berry, submitted bills to the Justice Administrative Commission for payment. The bills were rejected because the Commission could not determine that these fathers were indigent. The attorneys petitioned the trial court for relief, which ordered the Commission to process the attorneys' bills "for payment by the State of Florida." These petitions ensued.

We agree with the Commission that the court below departed from the essential requirements of the law in requiring it to process, and to have paid, bills for attorneys' fees for representation of individuals who were not properly determined to be indigent. Section 39.807 of the Florida Statutes governs the right to counsel in proceedings such as these and expressly authorizes appointment of counsel for indigent parents:

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 indigent parents.

§ 39.807(1)(a), Fla. Stat. (2007) (emphasis added). This provision confers no authority to appoint counsel for parents who are not indigent. It also confers no authority to order the state, in contravention of section 29.007 of the Florida Statutes, to pay the fees of an attorney appointed to represent someone who is not indigent. See § 29.007(1), Fla. Stat. (2007) (authorizing the use of state revenues to pay fees incurred by attorneys appointed to "handle cases where the defendant is indigent"); see also § 27.40(1), Fla. Stat. (2007) (generally authorizing appointment of counsel in criminal or civil proceedings for those entitled to counsel under "the Federal or State Constitution or as authorized by general law").

Neither of the fathers in these two cases appeared at any stage of the proceedings below. Thus, no determination of indigency was possible as to either of them. See § 57.082, Fla. Stat. (2007) (requiring disclosure of net income, assets, liabilities and debts for determination of indigent status in civil cases); § 39.807, Fla. Stat. (2007) (providing that a dependency court may appoint counsel for indigent parents and shall enter its findings regarding indigency); Fla. R. Juv. P. 8.515(a)(4) (same). Absent such determinations, counsel should not have been appointed and certainly no payment by the state mandated.

The two orders on review do not, however, stem from these provisions which have been "on the books" and in operation for a substantial period of time. Rather, they spring from the trial court's interpretation of this Court's recent decision in S.S. v. State, Department of Children & Family Services, 976 So.2d 41 (Fla. 3d DCA 2008), and the trial court's conclusion that the Commission was estopped from denying payment. Neither reason supports the orders on appeal.

In S.S., this Court, in a short concise opinion, did two things. First, we reversed a final judgment terminating a mother's parental rights because the record demonstrated that the mother, who had failed to appear at an advisory hearing, had not been properly served with notice of the TPR petition and the advisory hearing:

In this case, however, DCF and the record do not establish that the mother was personally served with the statutory notice required by paragraph 39.801(3)(a), Florida Statutes (2006):

FAILURE TO PERSONALLY APPEAR AT THIS ADVISORY HEARING CONSTITUTES CONSENT TO THE TERMINATION OF PARENTAL RIGHTS OF THIS CHILD (OR CHILDREN). IF YOU FAIL TO APPEAR ON THE DATE AND TIME SPECIFIED, YOU MAY LOSE ALL LEGAL RIGHTS AS A PARENT TO THE CHILD OR CHILDREN NAMED IN THE PETITION ATTACHED TO THIS NOTICE.

Because the delivery of this notice is an express condition precedent to the draconian consequences of a parent's failure to appear, it follows that, on that point alone, the termination of parental rights in this case must be reversed and remanded for further proceedings.

Id. at 42 (footnote omitted).

Second, we reiterated what earlier precedent had already made clear: that DCF must place evidence in the record to establish a prima facie case sufficient to support termination of a parent's rights even where that parent, after proper notice, fails to appear and is statutorily deemed to have consented to termination of his or her parental rights:

But in the event that, after confirmed service of the second amended petition for TPR including the printed statutory notice, S.S. fails to appear at the advisory...