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T.M.W. v. T.A.C.

Florida Court of Appeal, Fifth District

February 22, 2012

T.M.W., Father of J.A.C., A Child, Appellant,
v.
T.A.C., Mother of J.A.C., A Child, Appellee.

Page 1104

T.M.W., Century, pro se.

No Appearance for Appellee.

MONACO, J.

T.M.W., the father of J.A.C., appeals the order of the trial court terminating his parental rights because he was not provided with appointed counsel pursuant to section 39.807(1), Florida Statutes (2010). We reverse the order terminating T.M.W.'s parental rights in order to allow him the opportunity to be represented by counsel for the TPR proceedings.

Section 39.802(1), Florida Statutes (2010) provides that:

All proceedings seeking an adjudication to terminate parental rights pursuant to this chapter must be initiated by the filing of an original petition by the department, the guardian ad litem, or any other person who has knowledge of the facts alleged or is informed of them and believes them to be true.

The mother of J.A.C., as opposed to the Department of Children and Family Services, filed a petition to terminate T.M.W.'s parental rights. The petition alleged that J.A.C. was born in 1998, and was thirteen years of age at the time of the TPR hearing. The mother alleged that T.M.W.'s rights should be terminated with respect to her son because although he was the biological father, he had not visited the child since 2005; had not telephoned the child for a year prior to the filing of the petition; had never paid child support; and in 2010 he was sentenced to life in prison for attempted first degree murder. T.M.W. filed an answer, denying that he had abandoned the child, a motion to dismiss, and a motion for telephonic hearing.

The trial court heard both the motion to dismiss and the petition to terminate parental rights at a single telephonic hearing.

Page 1105

T.M.W., of course, appeared by telephone because of his imprisonment. No transcript of the hearing has been provided. T.M.W. indicates, however, that the trial court did not advise him that he had a right to counsel, and denied counsel to him when he asked for representation even though he advised the trial court that he was indigent.

The trial court subsequently entered an order terminating T.M.W.'s parental rights based on section 39.806(1)(d), Florida Statutes (2010), finding that T.M.W. would be incarcerated for a substantial portion of the period of time before the child would attain the age of 18 years. The trial court found that the child was 13 years old at the time of the hearing, and that there was no reasonable expectation that T.M.W. would be released from state prison prior to the child's eighteenth birthday. Simultaneously, the trial court held that T.M.W. did not have standing to contest the TPR because he was not listed on the putative father registry, was not on the child's birth certificate, had never been named as the father by any court, and had admittedly never paid child support. We note, however, that there is a final judgment of paternity in the record that was rendered in 2004, that establishes that T.M.W. is the father of the child based on the consent of both parties.

T.M.W. filed a timely motion for rehearing, asserting inter alia, that the trial court denied him a fair and impartial hearing and entered judgment contrary to law by denying T.M.W.'s request for appointed counsel. The trial court denied T.M.W.'s motion for rehearing and also denied T.M.W.'s motion for appointment of counsel on appeal.

In proceedings involving the possibility of permanent termination of parental rights to a child, indigent parents are entitled to the appointment of counsel. In re L.N., 814 So.2d 1142, 1143-44 (Fla. 2d DCA 2002) (citing In Interest of D.B., 385 So.2d 83, 90-91 (Fla.1980)). In fact, section 39.807(1) Florida Statutes provides:

(1)(a) 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. The court shall ascertain whether the right to counsel is understood and, where appropriate, is knowingly and intelligently waived. The court shall enter its ...

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