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T.M.W. v. T.A.C.
Citations: 80 So. 3d 1103; 2012 WL 591671; 2012 Fla. App. LEXIS 2900Docket: No. 5D11-3399
Court: District Court of Appeal of Florida; February 21, 2012; Florida; State Appellate Court
T.M.W., the father of J.A.C., appeals the trial court's order terminating his parental rights, citing a lack of appointed counsel as mandated by section 39.807(1) of the Florida Statutes (2010). The appellate court reverses the termination order, allowing T.M.W. the opportunity for legal representation. The mother of J.A.C. filed the termination petition, alleging T.M.W. had not visited or communicated with the child since 2005, had never paid child support, and was sentenced to life in prison for attempted first-degree murder. T.M.W. denied abandonment and sought to dismiss the petition during a telephonic hearing, where he requested counsel but was not informed of his right to representation and was denied assistance despite claiming indigence. The trial court terminated T.M.W.'s rights, citing his incarceration and lack of standing due to not being listed on the putative father registry or named on the birth certificate; however, a prior judgment from 2004 confirmed his paternity. T.M.W. filed a motion for rehearing, contending he was denied a fair hearing and legal counsel, which the trial court denied, as well as his motion for counsel on appeal. The ruling emphasizes that indigent parents have a right to appointed counsel in cases of potential permanent termination of parental rights, as outlined in relevant statutes and case law, requiring courts to inform parents of this right and document any waiver of counsel properly. A waiver of counsel, once accepted during legal proceedings, must be re-offered by the court at each subsequent stage where the parent appears without counsel. The right to counsel is fundamental under the due process clauses of both the U.S. Constitution and the Florida Constitution. The trial court is required to inform the parent of this right, ensure any waiver is made knowingly and intelligently, and document findings regarding the waiver or appointment of counsel. In this case, the trial court failed to appoint counsel for T.M.W. and did not document a waiver of that right, potentially due to the private nature of the termination of parental rights (TPR) proceeding. However, the statute mandates counsel for indigent individuals regardless of whether the TPR is initiated by a state agency or privately. Previous case law confirms that state action in parental termination cases necessitates due process protections for indigent parents. Consequently, T.M.W. was entitled to appointed counsel, and the court’s failure to provide this constitutes reversible error. Additionally, T.M.W. had standing to contest the termination of his parental rights, as he was named in the case and a final judgment of paternity established him as the child's father. The order terminating T.M.W.'s parental rights is reversed, and the case is remanded for a new hearing where the request for appointed counsel will be considered, along with the necessary written findings.