C.L.R. v. DCF
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
JULY TERM 2004
C.L.R., Father of C.R., C.R., E.R., M.R., etc.,
Appellant,
v.
CASE NO. 5D03-3323
DEPARTMENT OF CHILDREN AND FAMILIES,
Appellee.
/
Opinion Filed October 15, 2004
Appeal from the Circuit Court
for St. Johns County,
John M. Alexander, Judge
C.L.R., Marlborough, MA, pro se.
Patricia M. Swartz, St. Augustine, for Appellee.
PER CURIAM.
C.L.R. appeals the denial of his motion for hearing on issues raised in his pro se
pleading filed in a dependency action. Because we conclude that C.L.R. was entitled to
notice and an opportunity to be heard in his children’s dependency proceeding, we reverse.
C.L.R. is the father of six children. He is divorced from the children's mother. As part
of the divorce, the mother was given primary residential responsibility for the children. C.L.R.
has significant mental problems and was placed under a "no contact" order with the children
during the divorce. He has been accused of inflicting "severe physical and emotional harm"
on the children.1
The children were taken into custody by the Department of Children and Families
["DCF"] on December 12, 2002. At the time, five of the children were already living outside
the mother's home. A petition for dependency was filed on January 21, 2003. It sought to
have the children declared dependent with respect to both parents. It alleged that the parents
had neglected, abused and/or abandoned their children, and that the children were at risk for
prospective abuse and neglect.
C.L.R.'s whereabouts were unknown when the petition was filed. However, he
voluntarily appeared in the proceedings on April 28, 2003. Counsel was appointed to
represent him, but was permitted to withdraw on May 22, 2003 because of conflict with C.L.R.
On June 3, 2003, substitute counsel also declined representation. No other counsel was
appointed.
In the meantime, at a hearing on May 22, 2003, the mother consented to the
1
In 2000, a licensed social worker was asked to make recommendations to the court
regarding a request for visitation made by C.L.R. In her report, she stated that:
the children had been physically beaten with belts, fists and
spatulas on numerous occasions. [C.L.R.] had covered them in
oil and would chant in strange tongues over them. He would act
crazy, talking to himself and answering in a different voice.
[C.L.R.] also strangled one of the children to the point he turned
gray. He also beat one of them severely and locked the child in
the closet for hours. While visiting their father in Vero Beach the
children were repeatedly questioned about their mother,
threatened, and unable to call home. In her recommendations
Ms. Herhold stated that if this were a DCF case [C.L.R.] would
more than likely have had his parental rights severed due to the
severe physical and emotional harm he inflicted on the children.
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dependency. C.L.R., who appeared without counsel, denied the allegations of the petition.
Both parties attended a judicial review on June 9, 2003.2 During this hearing, DCF orally
dismissed the dependency action as to C.L.R. No further pleadings or papers were ever
served on him.3
On June 18, 2003, the mother filed a motion for reunification with all of her children but
the eldest, who desired to live elsewhere. The court deferred ruling on the motion until a
psycho-social evaluation could be performed on the mother. After a favorable report was
obtained, the mother renewed her motion for reunification. The court granted the motion on
July 25, 2003, and returned the children to their mother's custody, but left the children in the
protective supervision of DCF.
On August 19, 2003, C.L.R., acting pro se, filed three documents – an "Order to Show
Cause," a motion for hearing and a "Request for Discovery." The "order" asserted error in:
(1) the failure to appoint new counsel to represent him; (2) the refusal to allow him to take part
in the dependency action; (3) the return of the children to an abusive environment; (4) the
issuance of orders regarding the children and himself without proper notice of the
proceedings; (5) DCF's failure to file a motion to disqualify the trial court on the basis of
unspecified "prejudice"; and (6) the failure to provide legal counsel to the parties' eldest child,
who was still living out of the home. C.L.R. asked for a telephonic hearing on his "Order to
Show Cause," as he was living in Massachusetts.
2
C.L.R. asserts that he was physically removed from the hearing at some point.
3
A few of the early pleadings were served on one or the other of the two attorneys who
had withdrawn.
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In an order dated August 21, 2003, the court denied C.L.R.'s request for a hearing and
for discovery on the ground that C.L.R. had been dismissed from the dependency action on
June 9, 2003. After this appeal was taken, the parties' eldest child was placed in the longterm custody of non-relatives with the understanding that no further effort would be made to
reunify her with her parents. The court terminated protective supervision of the remaining
children on November 24, 2003.
The trial court's rejection of C.L.R.’s objection to his exclusion from the proceedings
was error. The dismissal of the action as to C.L.R. did not make him a non-party to the
dependency. Florida law does not require the filing of dependency actions against both
parents. It permits DCF to allege acts committed by only one parent as the basis of the
petition and to obtain an adjudication as to only one parent. See § 39.501(3)(c), Fla. Stat.
Parents who are not named in the petition are nonetheless considered "parties" to the action
under Florida Rule of Juvenile Procedure 8.210(a), which states:
(a) Parties. For the purpose of these rules the term
"party" and "parties" shall include the petitioner, the child, the
parent(s) of the child, the department, and the guardian ad litem
or the representative of the guardian ad litem program, when the
program has been appointed.
Accord B.C. v. Department of Children and Families, 864 So. 2d 486 (Fla. 5th DCA 2004).
As "parties," the parents are entitled to notice of all proceedings and must be served with all
pleadings, orders and papers, regardless of whether they are "named" as a defendant in the
dependency proceeding. See Fla. R. Juv. P. 8.225(c). The Florida Statutes similarly
recognize the right of the parent to notice of all proceedings. Section 39.502, Florida
Statutes, provides:
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(1) Unless parental rights have been terminated, all parents must
be notified of all proceedings or hearings involving the child.
Notice in cases involving shelter hearings and hearings resulting
from medical emergencies must be that most likely to result in
actual notice to the parents.
Id.
There was no error, however, in the failure to appoint counsel to represent C.L.R. In
S.B. v. Department of Children and Families, 851 So. 2d 689, 692 (Fla. 2003), the supreme
court explained the constitutional right to counsel in dependency proceedings and its
limitations. In 1994, the legislature codified the right to counsel in dependency actions.
§ 39.013(1), Fla. Stat. ("Parents must be informed by the court of their right to counsel in
dependency proceedings at each stage of the dependency proceedings. Parents who are
unable to afford counsel must be appointed counsel.") § 39.013(9)(a), Fla. Stat. This plainly
is not a case in which C.L.R. has a constitutional right to counsel. If a right exists, it is purely
statutory. Although the above-cited statutes are broadly phrased, the statutory right to counsel
appears to be intended only for those parents named in the dependency proceedings. Our
examination of the legislative history of these statutes confirms that the legislature intended
to create a statutory right to counsel that mirrored the constitutional right and shifted the burden
of its cost.4 We conclude that a parent who is not named in a dependency petition is not
entitled to appointed counsel.
On appeal, DCF mainly contends that the trial court properly refused to address the
4
Staff of Fla. H. Comm. on Aging and Human Services, HB 2409 (1994) Staff Analysis
16-17 (Feb. 24, 1994); Staff of Fla. S. Comm. on Child Welfare and Dependency
Proceedings, CS/SB 1858 (1994) Staff Analysis, 9 (Mar. 21, 1994).
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issues raised in C.L.R.'s "order to show cause" because the dependency proceeding was
essentially over when C.L.R.'s motion was made on August 19. Because no further
proceedings were pending, DCF contends that C.L.R.'s motion was untimely and/or moot.
We disagree that C.L.R.'s motion was untimely or moot. As the children’s father, he
had a right to have notice in advance of the proceedings, and there is no record evidence that
he did have notice. Moreover, the children were still under the continuing protective
supervision of DCF when the motion was made.
This brings us to the appropriate remedy. Even though the trial court has now
terminated supervision over all of the children, and we can detect no prejudice to C.L.R. given
the facts in this record and the lack of merit of any of his other issues on appeal, C.L.R. was,
nevertheless, entitled to be heard on the question of reunification. A new hearing will have to
be conducted for this purpose.
REVERSED and REMANDED.
PETERSON, GRIFFIN and PALMER, JJ., concur.
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