A.M. v. D.S.

314 So.3d 747

A.M., Father of S.K.M. and E.B.M., Appellant,

v.D.S. and C.S., Appellees.

Nos. 1D19-1853

1D19-1855

District Court of Appeal of Florida, First District.

March 26, 2021

Troy M. Farquhar and Aaron J. Irving of Integrity Law, P.A., Jacksonville, for Appellant.

Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, for Appellees.

Tanenbaum, J.

Due process of law is a bedrock constitutional guaranty. It entitles every person to a meaningful opportunity to be heard, upon proper notice, before the State deprives him of a substantive right. This guaranty rings hollow, though, unless that person has a fair idea of what exactly he is defending against, and an assurance that the proceeding in which he expects to participate goes forward predictably and orderly according to a fixed set of rules. A court's switching from one type of proceeding (and a commensurate set of rules) to another (with a different set of rules)—mid-proceeding and without notice—runs directly counter to this fundamental understanding of due process. Yet, that unfortunately is what happened in these consolidated cases.

A.M., the father of minor children S.K.M. and E.B.M., appeals two final orders. One terminated A.M.’s parental rights ("TPR") as to both children pending their adoption by their maternal grandparents (D.S. and C.S.). The other appointed the maternal grandparents as the children's permanent guardians, based on that TPR order. As will be discussed below, there are two types of TPR proceedings—with differing rules and standards. Because the grandparents pursued a TPR in conjunction with their effort to adopt S.K.M. and E.B.M., and the sum of the record reflects that this action was litigated as an adoption case rather than a dependency case, the proceeding should have progressed in a manner consistent with chapter 63 of the Florida Statutes,¹ which governs adoptions in Florida, and the rules associated with that chapter. The trial court, however, based its TPR order on the dependency provisions of chapter 39; those provisions dictate an entirely different type of proceeding. Because of this error, which resulted in the deprivation of A.M.’s right to parent his children without due process of law, we reverse.

I.

To put our discussion of the trial court proceedings in context, we first give an overview of the law and procedure that govern terminations of parental rights. As we just noted, there are only two types of proceedings by which parental rights may be terminated: "through [1] adoption or [2] the strict procedures set forth in chapter 39, Florida Statutes."

Fahey v. Fahey , 213 So. 3d 999, 1001 (Fla. 1st DCA 2016) ; see also Casbar v. DiCanio , 666 So. 2d 1028, 1029 (Fla. 4th DCA 1996) ("In Florida, there are only two means by which a parent's rights may be terminated: one is through adoption pursuant to [chapter 63] and the other is through the strict procedures set forth in [chapter 39]."). The two types are separate and distinct. Cf. § 63.037, Fla. Stat. (providing that a case in which a minor has become available for adoption as the result of a chapter 39 TPR proceeding "shall be governed by s. 39.812 and this chapter"; and exempting "[a]doption proceedings initiated under chapter 39" from certain provisions of chapter 63). Each has its own purpose and distinguishing features; and each is readily identifiable by the initiating pleading, the terminology used, and the manner in which the proceeding unfolds.

Chapter 39 TPR Proceedings

TPR proceedings under chapter 39 are primarily focused on the protection of children. Cf. § 39.001(1), Fla. Stat. (setting out legislative purposes for chapter 39); § 39.811(1), Fla. Stat. (requiring the trial court still to consider whether dependency has been established, even if "grounds for termination of parental rights have not been established by clear and convincing evidence"); see S.M. v. Fla. Dep't of Child. & Fams. , 202 So. 3d 769, 775–76 (Fla. 2016) (explaining the multi-step process before parental rights can be terminated under chapter 39—typically starting with a shelter petition, continuing with dependency proceedings, and ending with a permanency determination and, where necessary, termination of parental rights). In a chapter 39 TPR proceeding, then, adoption is a separate, post-disposition option, ancillary to the TPR itself. See § 39.813, Fla. Stat. (providing that the trial court that terminates parental rights in "proceedings pursuant to [chapter 39] shall retain exclusive jurisdiction in all matters pertaining to the child's adoption pursuant to chapter 63"); § 39.812, Fla. Stat. (providing for a "postdisposition" process, which calls for a separate adoption petition, involvement and necessary consent by the Florida Department of Children and Families ("DCF"), and the trial court's retention of jurisdiction until the adoption is finalized); cf. B.S. v. Dep't of Child. & Fams. , 246 So. 3d 479, 481–82 (Fla. 1st DCA 2018) (holding that while "substantive rights governing post-TPR adoptions remain in chapter 63, the procedures regarding post-TPR adoptions fall within the ambit of Chapter 39" and thus, the Florida Rules of Juvenile Procedure apply).

With one exception, a TPR petition filed under chapter 39 effectively seeks an involuntary termination. See § 39.806(1)(b)–(n), Fla. Stat. (setting out various separate and independent grounds for termination of parental rights, based on the parent's conduct that objectively could be harmful to the child, regardless of the parent's intent to be a parent); cf. id. at (1)(i) (establishing the prior involuntary termination of a parent's rights regarding the child's sibling as a ground for termination); Form 8.981, Fla. R. Juv. P. ("Petition for Involuntary Termination of Parental Rights");² but see § 39.806(1)(a), Fla. Stat. (establishing voluntary "written surrender of the child," with consent to "giving custody of the child to the department for subsequent adoption" as an additional ground for termination of parental rights).

All procedures in TPR proceedings under chapter 39, "including petitions, pleadings, subpoenas, summonses, and hearings," must be in accordance with the Florida Rules of Juvenile Procedure, "unless otherwise provided by law." § 39.801(1), Fla. Stat. Both DCF and the guardian ad litem ("GAL") program are parties in any chapter 39 proceedings. § 39.01(52), Fla. Stat.; cf. § 39.807(2)(a), Fla. Stat. (requiring trial court to "appoint a guardian ad litem to represent the best interest of the child in any termination of parental rights proceedings"); § 39.815, Fla. Stat. (providing that DCF, among others, may take an appeal in a chapter 39 TPR proceeding, requiring that an attorney for DCF be notified of any appeal, and that a DCF attorney "shall represent the state upon appeal").

In a chapter 39 TPR proceeding, unless there has been a voluntary surrender of parental rights, there must be an advisory hearing—in essence, an arraignment—"as soon as possible after all parties have been served with a copy of the petition and a notice of the date, time, and place of the advisory hearing for the petition." § 39.808(1), (4), Fla. Stat.; see also Fla. R. Juv. P. 8.510(a). At the hearing, the trial court must inform the parties of their rights, appoint counsel as required by law, and appoint the GAL, if one has not already been appointed. § 39.808(2), Fla. Stat. Both the petition and the notice of the advisory hearing must be personally served on the parent. Fla. R. Juv. P. 8.505(a). Both the statute and the rule require that the notice contain readily apparent text that is substantially similar to the following:

FAILURE TO PERSONALLY APPEAR AT THIS ADVISORY HEARING CONSTITUTES CONSENT TO THE TERMINATION OF PARENTAL RIGHTS OF THIS CHILD (OR CHILDREN). IF YOU FAIL TO APPEAR ON THE DATE AND TIME SPECIFIED, YOU MAY LOSE ALL LEGAL RIGHTS AS A PARENT TO THE CHILD OR CHILDREN NAMED IN THE PETITION ATTACHED TO THIS NOTICE.

§ 39.801(3)(a), Fla. Stat.; Fla. R. Juv. P. 8.505(b) ; cf. J.B. v. Fla. Dep't of Child. & Fam. Servs. , 768 So. 2d 1060, 1064–65 (Fla. 2000) (cataloging the due process protections for TPR proceedings included in the predecessors to the chapter 39 TPR statutes).

A petition filed in a chapter 39 TPR proceeding "shall be titled a petition for termination of parental rights," Fla. R. Juv. P. 8.500(a)(2), and "styled: ‘In the interest of ___, a child,’ or: ‘In the interest of ___, children,’ " Fla. R. Juv. P. 8.220 ; see also Form 8.901, Fla. R. Juv. P. The petition must identify the parent and his residence; must "contain a showing that the parent[ ] [was] offered a case plan," when the law requires one; and must "contain an allegation that the parent[ ] will be informed of the availability of private placement of the child with an adoption entity." Fla. R. Juv. P. 8.500(b)(4)–(5) ; see § 39.802(4), Fla. Stat. There is no written answer or other pleading required to be filed by the parent. § 39.805, Fla. Stat.; Fla. R. Juv. P. 8.520(a). The final hearing is called an "adjudicatory hearing." § 39.809, Fla. Stat.; Fla. R. Juv. P. 8.525. All parties are entitled to be present at all termination hearings. Fla. R. Juv. P. 8.525(d).

Chapter 63 TPR Proceedings

Chapter 63 is the Florida Adoption Act. § 63.012, Fla. Stat. The chapter focuses, of course, on the best interest of the children; but the primary purpose of the chapter is to put in place safeguards for a smooth adoption. Those safeguards include ensuring that the "minor is legally free for adoption and that all adoptions are handled in accordance with the requirements of law"; and that the "required persons consent to the adoption or the parent-child relationship is terminated by judgment of the court." § 63.022(4)(a)–(b), Fla. Stat.

Unlike a chapter 39 TPR proceeding—where termination is its own end upon clear and convincing proof of certain statutory factors—a TPR proceeding under chapter 63 is in furtherance of and service to the adoption itself. Cf. § 63.089, Fla....