Opinion
Case No. 96-2311.
Opinion filed February 10, 1997. As Modified on Grant of Clarification August 5, 1997.
An appeal from the Circuit Court for Columbia County. David E. Bembry, Judge.
Lloyd E. Peterson, Jr., Lake City, for Appellant.
Lainie S. Krop, Assistant State Attorney, Office of the State Attorney Child Welfare Legal Services, Gainesville, for Appellee.
In this appeal from a final order terminating parental rights, appellant contends the trial court erred in granting termination based solely on the fact that a minor without counsel signed a surrender and consent giving the child to the Department of Health and Rehabilitative Services ("DHRS") for subsequent adoption, because the court never determined that the consent was made voluntarily and with full understanding of the nature of the allegations and the possible consequences of the consent. We agree that the procedure followed in granting termination was not adequate, and, therefore, we reverse for further proceedings.
Appellant, herself a minor at the time, originally stipulated to her own and her child's dependency. The goal of the initial case plan was to reunite mother and child, however, not long after the dependency stipulation, appellant signed surrender forms giving up her parental rights. At that time, she also signed a written form waiving counsel. DHRS filed a petition to terminate parental rights. At the advisory hearing, which appellant did not attend, the court appointed counsel to represent her.
According to the final order, appellant's attorney appeared at the scheduled hearing, but appellant did not. Her attorney moved for a continuance, representing that appellant wanted to appear, but had been unable to find transportation. The court denied the continuance. The final order indicates that the parties stipulated that "the only issue on appeal shall be whether a minor without counsel may sign an affidavit of surrender, consent, and waiver of notice giving custody of the child to the Department for subsequent adoption." In light of the governing rules and case law, we conclude that while a minor without counsel may sign a surrender, the trial court first must have determined that the right to counsel was knowingly and intelligently waived.
Counsel must be appointed for the indigent mother in proceedings where permanent termination of parental rights may result. See In the interest of D.B., 385 So.2d 83, 91 (Fla. 1980). The stage at which counsel is appointed is particularly important in this case because once the surrender has been executed, it can only be withdrawn upon a finding that it was the product of fraud or duress. See § 39.464(1)(a)(2), Fla. Stat. (1995). In addition, the Rules of Juvenile Procedure require the following:
(b) Waiver of Counsel
(1) No waiver shall be accepted if it appears that the parent is unable to make an intelligent and understanding choice because of mental condition, age, education, experience, the nature or complexity of the case, or other factors.
(2) A waiver of counsel shall be made in court and be of record. The court shall question the parent in sufficient detail to ascertain that the waiver is made knowingly and intelligently.
In the present case, the court did not ascertain that any waiver of counsel was made knowingly and intelligently. Under the circumstances, the trial court should have granted the continuance as requested or should have made the required findings as to waiver of counsel.
We agree with appellant that the waiver form itself was somewhat confusing and inconsistent.
REVERSED AND REMANDED for further proceedings.
VAN NORTWICK and PADOVANO, JJ., CONCUR.