S.K. v. Department of Children and Families

• Decision Date: 20 June 2007
• Docket Number: No. 4D06-3830.,4D06-3830.
• Citation: 959 So.2d 1209
• Parties: S.K., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
• Court: Florida District Court of Appeals

959 So.2d 1209

S.K., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.

No. 4D06-3830.

District Court of Appeal of Florida, Fourth District.

June 20, 2007.

Denise E. Kistner of Law Offices of Denise E. Kistner, P.A., Fort Lauderdale, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for appellee.

WARNER, J.

A father, in prison for life, appeals the trial court's order adjudicating his minor child dependent as to the father. He claims that the trial court deprived him of due process by failing to appoint an attorney ad litem to represent him when he was indisputably incompetent. Because he was represented by counsel throughout the proceedings, no violation of due process occurred. The trial court correctly ruled that the dependency proceedings could not be delayed to await his restoration to competency. Finding ample evidence to support the trial court's adjudication of dependency, we affirm.

In August 2005 the Department of Children and Families filed a petition to declare K.K., a thirteen-year-old child, dependent as to both his mother and his father, S.K. The mother had abused the child and suffered from mental disorders. S.K. had been convicted of first-degree murder in 1998 and since that time had not had any contact with the child. The mother consented to the dependency before the arraignment.

The Department experienced difficulty in getting S.K. transported to an arraignment hearing. When the court finally held one in December 2005, S.K. exhibited bizarre thought patterns, prompting the court to appoint counsel for S.K. Ultimately, the court ordered a competency examination for S.K. Because of difficulties both with scheduling and with S.K., the competency evaluation did not occur until late spring of 2006.

After the examination report was received, S.K.'s counsel moved for a continuance of the final hearing, because he believed his client to be incompetent. Counsel wanted him restored to competency before proceeding with the hearings. At the hearing, counsel called the psychologist, Dr. Brannon, to testify with respect to S.K.'s competency. He testified that under the criminal standard, S.K.'s psychotic disorders rendered him incompetent to participate in his defense. Those disorders would prevent S.K. from engaging in behaviors necessary for parenting and rendered him a danger to himself and others. S.K.'s counsel also requested the appointment of an attorney ad litem for S.K. Unsure of how to proceed where neither the statutes nor the rules addressed the issue of incompetency of a parent, the trial court continued the final hearing for thirty days.

At the final hearing, S.K.'s counsel objected again to the failure to appoint an attorney ad litem, but the trial court refused, mainly because there was no funding for attorneys ad litem. The hearing proceeded with S.K.'s counsel representing S.K. The trial court listened to S.K.'s comments and arguments throughout with patience. S.K. confused this dependency hearing with his criminal proceedings. However, he was clear that he did not want to be responsible for support for K.K., and he was quite concerned about owing money for his care.

The only witness to testify at the hearing was a child protective investigator. Without objection, she testified that her investigation revealed that S.K. was sentenced to life in prison. Based upon her investigation, he had not paid any child support for K.K., nor has the child received any communication from S.K. When the Department asked about statements from the mother regarding S.K.'s communication, S.K.'s counsel objected, and over objection, the investigator testified that the mother had told him that S.K. had not paid support or communicated with K.K. Should S.K. ever get out of prison, the investigator would recommend services to be provided for S.K., as S.K. has not seen K.K. for a long time.

Counsel for the father moved for a directed verdict, claiming that the Department failed to show that the father had the ability to provide child support or establish some type of relationship with the child. Counsel argued that the mother's out-of-court allegations concerning S.K.'s failure to provide support were not corroborated and that the mother was not subject to cross-examination. At the conclusion of the hearing, the court found the child dependent because "the father has not been able to provide" and "will not be able to provide for the child in the foreseeable future."

On August 25, 2006, the trial court entered a Dependency Proceedings Order of Disposition. This order, however, largely mirrored the prior order of adjudication and included the following findings:

The father, [S.K.], has abandoned the child as defined in Florida Statute 39.01(1) in that the father, while being able, has made no provision for the child's support and makes no effort to communicate with the child, which situation is sufficient to evince a willful rejection of parental obligations. The father is currently incarcerated at Dade County Correctional Institution since 1998, sentenced to life for a first degree murder charge.

Furthermore, on March 16, 2006, Dr. Michael P. Brannon conducted a competency evaluation on [S.K.] and reduced his findings to a report dated March 18, 2006 which was accepted into evidence without opposition. He concluded that [S.K.] was not competent and posed a risk of harm to himself and others.

These activities and/or environments harmed the child as defined in Florida Statutes 39.01(30) and/or caused the child's physical, mental or emotional health to be significantly impaired.

The tasks for the father in the disposition order included following the recommendations in his competency evaluation in order to regain competence, appropriately participating in services made available at the correctional facility, completing a parental education program "as may be available," and participating in family therapy "as DCF may make available." S.K. appeals this order of disposition.

S.K.'s main issue of concern involves a denial of his due process rights by proceeding while he was incompetent to participate in his defense and by failing to appoint an attorney ad litem to represent him. S.K. seeks to apply criminal concepts, where a deprivation of liberty of the defendant is at stake, to this civil proceeding where the best interests of his child, not the parent's best interests, are of paramount concern.

This court recently addressed the due process implications of parental incompetency in a dependency proceeding. See L.M. v. Dep't of Children & Families, 946 So.2d 42 (Fla. 4th DCA 2006). There, the court-ordered evaluation of the mother in L.M. found her to be incompetent to proceed to trial. The mother, however, was represented by counsel, and the trial court had also appointed an attorney ad litem when the mother failed to appear for the competency evaluation. The mother contended that the court erred in proceeding with the final adjudication when she was incompetent to proceed. Noting that she was represented both by counsel and, in some hearings, by an attorney ad litem, we determined that the mother had the benefit of counsel at every step of the...