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In re D.P.

Florida Court of Appeals, Second District

October 25, 2017

In the Interest of D.P., III, a child.
v.
K.P., Appellee. M.M., Appellant,

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Hillsborough County; Tracy Sheehan, Judge.

          Ita M. Neymotin, Regional Counsel, Fort Myers, and Joseph Thye Sexton, Assistant Regional Counsel, Bartow, for Appellant.

          Jeanne T. Tate and Erica T. Healey of Jeanne T. Tate, P.A., Tampa, for Appellee.

          WALLACE, JUDGE.

         M.M., the Birth Mother, appeals from a judgment terminating her parental rights to her one child in conjunction with a proceeding for a stepparent adoption under chapter 63, Florida Statutes (2016). Because the trial court erred by failing to rule on the Birth Mother's timely filed motion for appointment of counsel, we reverse the judgment and remand for a new proceeding.

         I. THE FACTS AND PROCEDURAL BACKGROUND

         Because we reverse on a narrow procedural ground, a detailed recitation of the underlying facts is unnecessary. It suffices to say that, following the dissolution of the marriage of the Birth Mother and the child's father in 2013, the Birth Mother absconded with the child, was eventually apprehended, and is now serving a sentence of five years' imprisonment for illegally removing the child from the state. Following the dissolution of marriage, the father married K.P., the appellee Stepmother.

         The Stepmother petitioned for termination of the Birth Mother's parental rights and for adoption of the child in August 2016, alleging various grounds, including abandonment of the child resulting from the Birth Mother's incarceration. The clerk of the circuit court issued a summons to the Birth Mother, attaching the petition; the summons was personally served on the Birth Mother at her prison. The summons recited that the Birth Mother would have twenty days to respond to the petition, failing which a default would be entered against her. The summons additionally notified her of her right to counsel:

If you cannot afford an attorney to represent you in this matter, you may be entitled to a court-appointed attorney. Only persons determined to be indigent are entitled to an attorney who is court-appointed. If you desire counsel and believe you may be entitled to representation by a court-appointed attorney, you must contact the Office of the Clerk of Court and request that an "Affidavit of Indigent Status" be mailed to you. That affidavit must be completed and returned to the Office of the Clerk of Court for review and a determination of whether you are indigent. You should act immediately in submitting a request for counsel and copy your request on Petitioner so that any request can be promptly addressed.

         The summons announced that the hearing on the petition was set for October 6, 2016, and informed the Birth Mother that, if incarcerated, she should make arrangements with her classification officer to attend the hearing. The summons recited the hearing judge's name and phone number and concluded with this warning written in all-caps:

Under sections 63.087 and 63.089, Florida Statutes, failure to timely file a written response to this notice and the petition with the court and to personally appear at this hearing scheduled on the petition constitutes grounds upon which the court shall end any parental rights you may have or assert regarding the minor child.

         The return of service reflects service of the petition on the Birth Mother at her prison on August 26, 2016. Therefore, the deadline for serving a response to the petition would have been September 15, 2016. See Fla. R. Civ. P. 1.140(a) (requiring that "a defendant must serve an answer within 20 days after service of original process and the initial pleading"); Fla. Fam. L.R.P. 12.140 (same deadline). The Stepmother filed a motion for default on September 16, the twenty-first day after service of the summons, and the clerk entered a default that day.

         The Birth Mother mailed a motion for extension of time to respond that was filed in the circuit court on September 22, 2016. The Birth Mother did not state a date in her certificate of service of this motion, nor was a prison date stamp affixed to the face of the motion. As a result, we cannot determine with certainty whether this motion was served within the twenty-day deadline set by the rules. In her motion, the Birth Mother acknowledged that she had been served with the summons on August ...


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