A.F. v. Department of Children and Families, 2014 WL 5151623 (Fla. 3rd DCA)

The Mother appeals the trial court’s order terminating her parental rights arguing that the trial court committed reversible error by appointing an attorney ad litem rather than appointing a guardian ad litem to represent the best interests of the child. The Third District Court of Appeal (Third DCA) held that 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 … 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). The Third DCA held that it was not reversible error for the following reasons:

  • 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.
  • the child’s attorney ad litem was appointed early in the proceedings;
  • when the child’s attorney ad litem was appointed the trial court directed that she represent the best interests of the child; and
  • the record establishes that the child’s attorney ad litem dutifully represented the child’s best interests throughout the case.

Although the child’s attorney ad litem 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 Third DCA affirmed the trial court’s order stating that trial court’s error in failing to appoint a guardian ad litem did not constitute fundamental error.

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