In the Interest of D.P., III, a child.
K.P., Appellee. M.M., Appellant,
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Tracy
Neymotin, Regional Counsel, Fort Myers, and Joseph Thye
Sexton, Assistant Regional Counsel, Bartow, for Appellant.
T. Tate and Erica T. Healey of Jeanne T. Tate, P.A., Tampa,
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.
THE FACTS AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
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 ...