## Facts

- J.L.K. was born in September 2004.
- The Florida Department of Children and Families sheltered the child with the maternal grandmother and initiated dependency proceedings alleging the mother was unable to care for the child.
- Before the dependency adjudicatory hearing, the grandmother sought to halt the dependency case so she could file a private adoption under Chapter 63, Florida Statutes, including a petition to terminate the mother’s parental rights.
- The dependency court abated the dependency proceeding to allow the adoption case to proceed.
- In March 2005, the grandmother filed a Chapter 63 petition for termination of parental rights pending adoption.
- The trial court terminated the mother’s parental rights by default after she failed to respond; the mother was incarcerated at the time.
- The mother’s prior dependency counsel entered an appearance in the adoption case, filed an indigency affidavit, moved for appointment of counsel, and moved to vacate the termination judgment and set aside the default.
- The mother also sought appointment of appellate counsel in connection with an appeal.
- The trial court denied the motions to appoint trial and appellate counsel in the Chapter 63 proceeding.
- On appeal, the termination judgment was set aside by stipulation and dependency proceedings were reinstated, mooting the appeal from the termination judgment; the appeal continued solely as to denial of appointed counsel.

## Issues

1. Whether an indigent parent facing involuntary termination of parental rights in a privately initiated Chapter 63 adoption proceeding has a constitutional right to appointed trial counsel.
2. Whether that right includes appointed appellate counsel.
3. Whether a privately initiated termination/adoption proceeding involves sufficient state action to trigger due process protections.

## Decision

- The appellate court reversed the order denying appointment of counsel.
- The court held that an indigent mother facing involuntary termination of parental rights in a Chapter 63 adoption proceeding has a constitutional right to appointment of both trial and appellate counsel.
- The case was remanded with directions to appoint trial and appellate counsel nunc pro tunc to the date of the mother’s motion to appoint counsel.
- The appeal from the termination judgment itself was dismissed as moot because the judgment had been set aside.

## Legal Principles

- Termination of parental rights is an extreme and permanent deprivation implicating heightened due process protections under the Florida Constitution.
- Florida due process may require greater protection than the federal minimum; federal precedent setting a baseline (including case-by-case approaches) does not limit Florida’s ability to require counsel as a matter of state constitutional law.
- A Chapter 63 private termination/adoption proceeding entails state action because only the state, acting through its courts, can legally terminate parental rights.
- When an indigent parent faces involuntary termination of parental rights, due process under the Florida Constitution requires appointment of counsel at both trial and on appeal.

## Conclusion

The court held that Florida constitutional due process requires appointment of counsel for an indigent parent in a privately initiated Chapter 63 proceeding seeking involuntary termination of parental rights, and that the right extends to both trial and appellate representation, warranting reversal of an order denying counsel and a remand for nunc pro tunc appointment.


M.E.K. v. R.L.K., 921 So. 2d 787 (Fla. Dist. Ct. App. 5th Dist. 2006)