Summer 2018
Legal Briefs Newsletter
A note from Thomasina Moore, Statewide Director of Appeals -

With this newsletter the Guardian ad Litem Program celebrates the first anniversary of its Defending Best Interests Project, a first-of-its-kind initiative which systematically uses pro bono legal services to represent children in Florida’s appellate courts. The DBI Project started out as an effort to find volunteers to provide advocacy for children in 25 appellate cases and has ballooned into a hugely successful partnership between the GAL Program and private attorneys which is yielding top notch legal advocacy for children.  

Faced with an 11% spike in children coming into out-of-home care, the GAL Program looked for creative ways to serve these vulnerable children. The Defending Best Interest Project recruits attorneys to serve pro bono on appellate cases where a judicial determination of best interests is being challenged on appeal. The pro bono attorneys write the legal argument with help from the GAL Program. This has allowed the Program to shift resources from its appellate team to address the immediate needs of children in the trial courts.  

As the numbers below show, GAL’s Project has far exceeded all expectations. Instead of 25, we’ve assigned a whopping 125!  Here’s how the numbers break down:

 125 cases assigned
Over 2500 hours volunteered, at a value of more than $725,000
230 children represented

The overwhelming success of the Program was even recognized by Florida TaxWatch, when we won the Prudential Productivity Award!

Additionally, the DBI Project has enhanced the quality of the Program’s appellate advocacy. While the Program has always had a strong appellate department (participating in over 600 appeals last year, including in the United States Supreme Court), the depth and variety of experience among the appellate practitioners volunteering has raised the Program’s game even higher! Private attorneys who have volunteered for the project include numerous board certified appellate specialists, former Law Clerks for Florida’s Supreme Court and District Courts, and “Super Lawyer” award winners. The members of Appellate Law Section of The Florida Bar have provided overwhelming support to the initiative. 

The biggest winners, however, are the children. Of the 230 children represented 140 have reached permanency and 23 have been adopted. DBI Lawyers have a near-perfect record, prevailing on all but one of the appeals undertaken. This is how the Guardian ad Litem Program is the “x-factor” for children, the multiplier, the exponent: – by matching the needs of the children with the special skills of its volunteers, by using innovative collaborations, and by always putting the best interests of children first. I am honored to have worked with such talented, generous lawyers, and for any of you who are reading this article – thank you!
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The Florida Guardian ad Litem Program was recognized by Florida TaxWatch and received the Prudential Productivity Award for the Defending Best Interests Project.

Check out the GAL Program's Child Best Interest Attorneys talking about children they have advocated for over the years.
Read Opinions
Proper Service, Failure to Appear and Constructive Consent to Dependency-Trial court correctly ruled that the mother’s presence at the shelter hearing obviated the need for service of process of the dependency petition and that mother’s failure to attend the arraignment hearing constituted a constructive consent to the adjudication of dependency.

Practice Tip: Pursuant to both § 39.502(2) and FRJP, 8.225(a)(3)(C), personal appearance of a parent at a shelter hearing obviates the necessity of personal service of the dependency petition.  

A Special Thanks to Rocco J. Carbone III, who handled this appeal low bono for the GAL Program through the Defending Best Interest Project’s partnership with The Florida Bar’s Appellate Practice Section.  
Tolling of Time for Appeal-Adoption following a termination of parental rights is governed by the Florida Rules of Juvenile Procedure where a motion for rehearing does not toll the time for filing a notice of appeal.

Practice Tip: Substantive rights governing post-TPR adoptions are governed by Chapter 63 and therefore the Family Law Rules of Procedure apply; procedural rights regarding post-TPR adoptions are governed by Chapter 39 and therefore follow the Rules of Juvenile Procedure.
Due Process-Parents have a due process right to be present for the manifest best interest and least restrictive means portion of proceeding for the termination of their parental rights.

Practice Tip:  Violations of due process rights in these cases create reversible error on appeal, delaying permanency for the children while the appeal is pending and thereafter when the appellate court reverses and remands the case for further proceedings.
Statute of Repose and Standing-Appeal barred by statute of repose and dismissed where biological father was not a legal parent, was not a party to the adoption below and had no standing to challenge the adoption judgment.

Practice Tip: Biological father to children born to an intact marriage must seek to establish paternity adjudication prior to termination of parental rights of legal parents.
Competent Substantial Evidence-Trial court’s determination that child was at substantial risk of imminent harm was not supported by competent substantial evidence. 

Clear and Convincing Evidence-Order terminating parental rights will be affirmed so long as at least one of the statutory grounds pursuant to § 39.806(1) is supported by clear and convincing evidence, termination is in the manifest best interest of the child and is the least restrictive means to protect the child from harm.

Practice Tip: While it is important to allege all cognizable grounds under 39.806(1) in a TPR petition because there is always a chance the trial or appellate court will dismiss or reverse one or more grounds, it is also important to limit allegations to grounds that can be proved at trial to avoid creating appealable error which results in further delay to permanency for the child.  
Sections 39.521 and 39.522 Fla. Stat. (2017)-Order terminating protective services and jurisdiction reversed due to trial court’s failure to comply with requirements of § 39.521(7) and § 39.522(7) of the Florida Statutes. 

Practice Tip:  Failure to comply with the mandates of Chapter 39 results in unnecessary delays to permanency.
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