LW v. Department of Children and Families

• Decision Date: 28 March 2002
• Docket Number: No. 1D01-368, No. 1D01-369.
• Citation: 812 So.2d 551
• Parties: L.W., Father of L.W. and T.W., Minor Children; and R.L.W., Mother of J.P., L.W., T.W., Minor Children, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
• Court: Florida District Court of Appeals

812 So.2d 551

L.W., Father of L.W. and T.W., Minor Children; and R.L.W., Mother of J.P., L.W., T.W., Minor Children, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.

Nos. 1D01-368, 1D01-369.

District Court of Appeal of Florida, First District.

March 28, 2002.

Deborah A. Schroth of Florida Legal Services, Inc., Jacksonville; Michael R. Yokan, Jacksonville; Tracy Reinman, Legal Intern, for Appellants.

Doris Rompf, Department of Children and Families, Jacksonville, for Appellee.

WEBSTER, J.

In this juvenile dependency case, appellants (the parents of children found to be dependent) seek review of a final order denying their petitions for writs of habeas corpus by which they attempted to challenge the competence of the court-appointed attorney who had represented them. We conclude that the parents were constitutionally entitled to competent court-appointed counsel in the dependency proceeding. Because habeas corpus appears to be the only means by which they can ensure that right is not denied, we conclude, further, that they are entitled to challenge the competence of their appointed counsel by habeas corpus. Accordingly, we reverse, and remand for consideration of the petitions on the merits.

I.

The Department filed a dependency petition alleging that the father had sexually abused his stepdaughter, and that the mother had failed to protect her daughter. It alleged, further, that the parents' two sons were at risk of prospective abuse because of the father's sexual abuse of the stepdaughter and the mother's failure to protect her. The parents denied the allegations, and the trial court appointed an attorney to represent them. An adjudicatory hearing was held, at the end of which the trial court orally found that the allegations had been established by the greater weight of the evidence. On August 9, 1999, the trial court held a disposition hearing. Both parents continued to be represented by the same appointed counsel. At the conclusion of that hearing, the trial court announced that it was adopting the recommendations contained in the predisposition report submitted by the Department, and asked the Department to prepare a final disposition order. For reasons that are not clear from the record, a written disposition order was not signed until November 2, 1999, some five months after the adjudicatory hearing, and three months after the disposition hearing. Among other things, the disposition order directed that the children be placed out of the home (the girl with a relative, and the two boys with a non-relative); that the mother have no contact with her daughter until she had completed a psychological evaluation and her therapist and the daughter's both approved, and only supervised visitation with the two sons; and that the father have no contact with any of the children until he had completed a psychosexual evaluation and recommended therapy and his therapist and the stepdaughter's both approved.

In February 2000, the mother secured the services of a different attorney. A judicial review hearing was held on February 17, 2000. The mother was represented by new counsel, but the father continued to be represented by the original court-appointed attorney. Over the mother's objection, her daughter was placed in the custody of an adult sister and Department supervision was terminated. In addition, the mother's request that the two boys be returned to her or, alternatively, that she receive extended unsupervised visitation was denied pending evaluations of the boys. Following a hearing in August 2000 at which the Department contested the mother's request that the two boys be returned to her, the trial court entered an order granting that request. The father remained unable to have contact with any of the children, and the mother remained unable to have any contact with her daughter. On November 3, 2000, the mother and the father (now also represented by new counsel) filed petitions requesting the trial court to set aside the orders of adjudication and disposition on account of the incompetence of their original appointed attorney. The relief was sought pursuant to Florida Rule of Juvenile Procedure 8.270(b)(1) or, in the alternative, by a writ of habeas corpus.

In their petitions (which are substantively identical), the parents alleged that the father had been charged with sexual battery, and remained incarcerated from January 25, 1999, until February 2000, when he was acquitted following a jury trial; and that the mother had been charged with sexual battery, child abuse and child neglect, and remained incarcerated from February 2, 1999, until August 1999, when the charges against her were dropped. They asserted that they were constitutionally entitled to representation by competent court-appointed counsel in the dependency proceeding, and that they were denied due process of law because their court-appointed counsel had not competently represented them, to their prejudice. More particularly, they alleged that counsel had been ineffective because he (1) never raised the possibility of a conflict of interest arising out of his representation of both of them; (2) failed to depose the stepdaughter, who was the sole witness regarding the dependency allegations; (3) failed to view the videotape of the interview of the stepdaughter conducted by the Child Protection Team; (4) failed to depose any other potential witness, or otherwise to conduct any discovery; (5) failed to request a continuance pending resolution of the criminal charges so that they might testify on their own behalf; (6) failed to request that the proceeding be reopened after the charges against the mother had been dropped and the father had been acquitted; (7) failed to object to inadmissible hearsay testimony presented by the Department at the adjudicatory hearing; (8) actually elicited damaging inadmissible hearsay testimony from the stepdaughter's therapist; (9) failed to object to inadmissible hearsay testimony presented by the guardian ad litem; (10) failed to object, or to propose alternatives, to the guardian ad litem's request for in camera examination of the stepdaughter by the trial court out of his presence and their presence; and (11) failed to present any evidence or legal argument in opposition to the allegations regarding the two boys. They alleged that they had been prejudiced because appointed counsel failed to point out that the Department had presented no evidence as to the allegations regarding the two boys, causing both parents to lose custody of the boys for more than a year and subjecting the family to continuing supervision by the Department; and because he had missed "glaring discrepancies" in prior statements made by the stepdaughter. They alleged, further, that, had counsel provided competent assistance, "it is likely that the ultimate outcome of the adjudicatory trial would have been different." They requested an evidentiary hearing at which they might be afforded an opportunity to prove their allegations.

Following oral argument directed to the question of whether either of the remedies requested would be available assuming that the allegations were true, the trial court entered the order which is the subject of this appeal, summarily denying the petitions on the ground that, as a matter of law, neither of the remedies requested is available. On appeal, the parents argue only that it was error to hold that, as a matter of law, they were not entitled to challenge their appointed counsel's alleged incompetence by habeas corpus. They do not challenge that portion of the trial court's ruling that addressed the applicability of Florida Rule of Juvenile Procedure 8.270(b)(1).

II.

Recognizing the constitutionally protected fundamental liberty interest of parents to raise their children "free from the heavy hand of government paternalism," see Padgett v. Dep't of Health & Rehab. Servs., 577 So.2d 565, 570 (Fla.1991),

our supreme court has held "that counsel is necessarily required under the due process clause of the ... Florida Constitution[], in [dependency] proceedings involving the permanent termination of parental rights to a child, or when the proceedings, because of their nature, may lead to criminal child abuse charges." In the Interest of D.B., 385 So.2d 83, 90 (Fla.1980). Likewise acknowledging the importance of the interests at stake, the legislature has extended the right to counsel to indigent parents in all dependency proceedings. See § 39.013(1) & (8)(a), Fla. Stat. (1999). It is undisputed that, because both parents faced felony criminal charges involving allegations of child abuse and neglect, they were constitutionally entitled to court-appointed counsel in the dependency proceeding.

A.

We have previously held that, in dependency proceedings implicating the possible permanent termination of parental rights, the right to court-appointed counsel necessarily implies that such counsel provide competent assistance. In the Interest of M.R., 565 So.2d 371 (Fla. 1st DCA 1990). Our holding there is consistent with the position taken by the overwhelming majority of other jurisdictions, which hold that a parent's right to court-appointed counsel in termination of parental rights proceedings must include the right to effective assistance of counsel because, otherwise, the right to counsel would be an empty formality. See, e.g., Ex parte E.D., 777 So.2d 113, 115 (Ala.2000)

; State v. Anonymous, 179 Conn. 155, 425 A.2d 939, 942-43 (1979); In Interest of A.H.P., 232 Ga.App. 330, 500 S.E.2d 418, 421-22 (1998); J.T. v. Marion County Office of Family & Children, 740 N.E.2d 1261, 1265 (Ind.Ct.App.2000); In Interest of J.C., Jr., 781 S.W.2d 226 (Mo.Ct.App. 1989) (and cases cited therein); N.J. Div. of Youth & Family Servs. v. V.K., 236 N.J.Super. 243, 565 A.2d 706, 712 (1989); Matter of Termination of Parental Rights of James W.H., 115 N.M. 256, 849 P.2d 1079, 1082 (N.M.Ct.App.1993); Jones v. Lucas County...