A.F. v. Department of Children & Families

Third District Court of Appeal
State of Florida

Opinion filed October 15, 2014.
Not final until disposition of timely filed motion for rehearing.

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No. 3D14-1382
Lower Tribunal No. 11-15743
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A.F., the Mother,
Appellant,

vs.

The Department of Children and Families,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Rosa C.
Figarola, Judge.

Richard F. Joyce, for appellant.

Karla Perkins, for appellee.

Before ROTHENBERG, LAGOA, and SCALES, JJ.

ROTHENBERG, J.
 A.F. (“the Mother”) appeals the trial court’s order terminating her parental

rights with regard to her child, N.F. (“the Child”), arguing that the trial court

committed reversible error by not appointing a guardian ad litem to represent the

best interests of the Child. Because (1) the trial court appointed an attorney ad

litem and directed the attorney ad litem to protect the best interests of the Child (2)

the Mother did not object to the trial court’s appointment of an attorney ad litem

instead of a guardian ad litem and (3) the attorney ad litem actively participated in

the termination proceedings and clearly protected the Child’s best interests, we do

not find that the trial court committed fundamental error. Accordingly, we affirm.

The Mother gave birth to the Child on February 3, 2011, when she was only

sixteen years old and herself in foster care under the supervision of the Florida

Department of Children and Families (“the DCF”). After the Mother disappeared

from foster care with the Child on multiple occasions, the DCF opened a

dependency case against the Mother. The Mother entered into a consent plea

adjudicating the Child dependent, and the Child was placed with the Child’s

paternal grandmother. The DCF subsequently created a case plan with the ultimate

goal of reuniting the Mother and the Child. This case plan provided for scheduled

visitation between the Mother and the Child and also provided certain

requirements the Mother must satisfy to maintain her parental rights. One of these

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requirements was that the Mother could not again take the Child from DCF

custody without permission.

The Mother failed to comply with several provisions in the case plan, and at

one point, she left with the Child without bringing the Child’s necessary

medication. The Mother also stopped attending her scheduled visitation

appointments for several months. In response, the DCF amended the case plan to

recommend the Child be placed for adoption. The DCF then filed a petition to

terminate the Mother’s parental rights based on the Mother’s abuse, neglect, and

abandonment of the Child pursuant to sections 39.806(1)(b) and 39.806(1)(e)(1) of

the Florida Statutes (2012).

During the termination of parental rights proceedings, the trial court

appointed Melissa Arrojas to serve as an attorney ad litem for the Child,

specifically instructing Arrojas that she was to protect the best interests of the

Child. After several continuances to allow psychological evaluations and home

studies, the termination of parental rights proceeded to trial starting on September

25, 2013, and concluding in February 2014. The Child had just turned three years

old at the end of the proceedings and had been placed with a foster family for over

a year.

During the trial, the DCF introduced several witnesses who recommended

that the Mother’s parental rights be terminated, including the case manager, who

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was intimately familiar with the details of the case. The Mother did not dispute

that she violated the case plan on multiple occasions and eventually stopped

visiting the Child at the scheduled times. The attorney ad litem actively

participated during the trial proceedings. She conducted the direct examination of

the case manager in which she elicited a recommendation that the Mother’s rights

be terminated, cross examined the Mother regarding the details of the Mother’s

multiple violations of her case management plan, called the Child’s foster mother

as a witness to testify how the foster mother had bonded with the Child, and

finally, at the conclusion of the trial, Arrojas made a closing argument where she

ultimately recommended that the trial court grant the DCF’s petition to terminate

the Mother’s parental rights. In short, Arrojas argued vehemently on the Child’s

behalf and represented the Child’s best interests. At no point in the proceedings

below did the Mother request a guardian ad litem be appointed or object to the trial

court’s directive to Arrojas that she represent the best interests of the Child.

The trial court ultimately entered a final judgment terminating the Mother’s

parental rights to the Child on May 16, 2014. The final order specifically found

that Arrojas had represented the Child’s best interests and also found that it was in

the Child’s manifest best interests that the Mother’s parental rights be terminated.

The Mother’s sole argument on appeal is that the trial court committed

reversible error by failing to appoint a guardian ad litem rather than an attorney ad

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litem to represent the Child’s best interests. In support of her position, the Mother

directs this Court to section 39.808(2) of the Florida Statutes (2012) and Florida

Rule of Juvenile Procedure 8.510(a)(2)(D), both of which require the trial court to

appoint a guardian ad litem for the Child. The statutes are clear on this point, and

the trial court clearly erred by not appointing a guardian ad litem. See G.S. v.

Dep’t of Children & Family Servs., 838 So. 2d 1221, 1222 (Fla. 3d DCA 2003)

(per curiam).

However, because the right to have a guardian ad litem appointed is a

statutory right existing in the Child—not the Mother—and because the Mother did

not object to the trial court’s failure to appoint a guardian ad litem at any point in

the nearly three years of proceedings below, the trial court’s failure to appoint a

guardian ad litem mandates reversal only if it was fundamental error. C.M. v.

Dep’t of Children & Family Servs., 854 So. 2d 777, 779-80 (Fla. 4th DCA 2003).

On these facts, we cannot find the trial court’s error to be fundamental. The

rules requiring the trial court to appoint a guardian ad litem for the child are in

place to ensure that someone is representing the child’s best interests free of

conflict and to ensure that the facts of the case have been fully considered.

Here, Arrojas was appointed as the Child’s attorney ad litem early in the

proceedings; when she was appointed the trial court directed that she represent the

best interests of the Child; and the record establishes that she dutifully represented

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the Child’s best interests throughout the case. Although Arrojas’ appointment was

titled as an attorney ad litem, it does not negate the fact that she fulfilled nearly all

the functions required of a guardian ad litem.

The undisputed evidence amply supports the trial court’s finding that the

Mother neglected and abused the Child, and both Arrojas and the Mother’s case

manager unequivocally recommended that the Mother’s parental rights be

terminated based on the Child’s best interests. Thus, the trial court’s decision to

terminate the Mother’s parental rights was supported by the record, and the Child’s

best interests were fully represented. We therefore conclude that the trial court’s

failure to appoint a guardian ad litem in this case was not fundamental error.

Affirmed.

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