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Gift of Life Adoptions v. S.R.B.

Florida Court of Appeals, Second District

July 27, 2018

S.R.B., Respondent.

          Petition for Writ of Certiorari to the Circuit Court for Pinellas County; Kathleen Hessinger, Judge.

          Timothy M. Beasley, Pinellas Park, for Petitioner.

          Ita M. Neymotin, Regional Counsel, Second District, and Ngozi C. Acholonu, Assistant Regional Counsel, Office of Regional Conflict Counsel, Clearwater, for Respondent.


         Appellant, Gift of Life Adoptions (GLA), has filed a "Request for Written Opinion" under Florida Rule of Appellate Procedure 9.330(a). We grant GLA's motion. The prior per curiam dismissal dated May 23, 2018, is withdrawn, and the attached opinion is issued in its place. No further motions will be entertained.

          LUCAS, Judge.

         Gift of Life Adoptions (GLA) is an adoption agency that is endeavoring to facilitate a baby's adoption by a prospective couple. As part of the adoption process, pursuant to section 63.089, Florida Statutes (2017), GLA initiated the underlying action to terminate the parental rights of the baby's biological parents. The biological mother of the baby, who had voluntarily surrendered her child to GLA for adoption, consented to the termination of her parental rights. The present controversy stems from the litigation to terminate S.R.B.'s parental rights, whom GLA refers to as "an unmarried putative biological father" of this child.

         GLA served S.R.B. with a notice of an intended adoption plan while he was incarcerated in the Sarasota County Jail.[1] In response, S.R.B. filed a handwritten paper in which he stated that he was the father of the baby and that he did not waive or consent to the termination of his parental rights. S.R.B. further stated that he was indigent "and would like the court to appoint an attorney to protect his right's [sic] as a parent." When informed by the clerk of the circuit court that it could not appoint him counsel, S.R.B. later filed a handwritten motion for the appointment of counsel to represent him in the termination proceeding.

         GLA then filed a motion for default, arguing that because S.R.B. failed to comply with the statutory requirements of sections 63.062(2)(b)(2) and (3)(a), Florida Statutes (2017), his handwritten responses were insufficient, and he had therefore waived and surrendered any rights to the child. The circuit court held a hearing on GLA's motion, at which S.R.B. appeared telephonically and renewed his request for a court-appointed attorney. Relying upon language within this court's holding in S.C. v. Gift of Life Adoptions, 100 So.3d 774 (Fla. 2d DCA 2012), the circuit court felt bound to deny GLA's motion for default in order to appoint S.R.B. counsel.[2] GLA now challenges that order in this timely petition for writ of certiorari.

         The crux of GLA's argument for certiorari relief is that the circuit court departed from the essential requirements of law when it appointed S.R.B. counsel and that that error visited a material injury upon someone (GLA does not specify who) because the appointment of counsel "delays and places at risk" this child's prospective adoption. The substantive question GLA raises concerning S.R.B.'s right to counsel is a difficult one.[3] But we cannot reach it in this certiorari proceeding.

         Our jurisdiction to issue a writ for the "extraordinary remedy" of certiorari, Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla. 2004) (quoting Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1098 (Fla. 1987)), is well settled. To obtain certiorari relief, a petitioner must show "(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal." Reeves, 889 So.2d at 822 (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002)). "The last two elements are jurisdictional and must be analyzed before the court may even consider the first element." Williams v. Oken, 62 So.3d 1129, 1132 (Fla. 2011) (citing Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 527 (Fla. 1995)). The petition before us fails to meet either jurisdictional prong.

         GLA has not cited, and we have not located, a single published decision where a court has construed a lawyer's representation to be, in and of itself, a cognizable, much less irremediable, injury in a termination of parental rights proceeding. Quite the contrary, whatever delay the presence of an opposing attorney could be said to entail, Florida law recognizes that indigent parents are entitled to court-appointed counsel in a proceeding to terminate their parental rights. Cf. J.B. v. Fla. Dep't of Children & Family Servs., 768 So.2d 1060, 1068 (Fla. 2000) ("The right to counsel in termination of parental rights cases is part of the process designed to ensure that the final result is reliably correct." (citing Dep't of Children & Family Servs. v. Natural Parents of J.B., 736 So.2d 111, 117 (Fla. 4th DCA 1999))); O.A.H. v. R.L.A., 712 So.2d 4, 7 (Fla. 2d DCA 1998) ("We believe that [In the Interest of D.B., 385 So.2d 83 (Fla. 1980)] mandates the appointment of counsel to represent a non-consenting parent in a contested adoption proceeding when the parent is indigent and his or her consent to the adoption is sought to be excused under section 63.072(1), Florida Statutes (1993)."). And the premise behind GLA's argument in this petition-that the presence of a lawyer for a putative father in a contested termination of parental rights proceeding constitutes a material injury-strikes us as rather troubling. See generally Penson v. Ohio, 488 U.S. 75, 84 (1988) ("The paramount importance of vigorous representation follows from the nature of our adversarial system of justice. This system is premised on the well-tested principle that truth-as well as fairness-is 'best discovered by powerful statements on both sides of the question.'" (quoting Irving R. Kaufman, Does the Judge Have a Right to Qualified Counsel?, 61 A.B.A.J. 569, 569 (1975) (quoting Ex Parte Lloyd (1822) Mont 70, 72n))); Fla. Bar v. Dove, 985 So.2d 1001, 1010 (Fla. 2008) ("Lawyers who undertake representation in the vital areas of adoption, dependency, and delinquency and in other family law cases serve interests which have unexcelled importance in the law."). We are loathe to view what is a hallmark of adversarial proceedings in our judicial system as a material injury in this context.[4]

         In sum, GLA has not shown how the circuit court's order appointing counsel results in a material injury for the remainder of the case that cannot be corrected on postjudgment appeal. Accordingly, we are without jurisdiction to review GLA's petition and must dismiss it without consideration ...

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