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If you are a parent whose rights have been terminated, you may be wondering what you can do. Not having parental rights can be a devastating blow. In most cases, having your parental rights terminated is a severe legal action that is irrevocable and permanent. Once a Florida court terminates a parents’ rights, it is difficult, and in many cases impossible, for parents to obtain those rights again. However, there is always a chance that the termination of parental rights can be reversed through an appeal.
Florida Law Regarding Reinstatement of Parental Rights Currently, only nine states in the United States have passed legislation explicitly allowing the reinstatement of parental rights. Florida is not one of these states. There is no law providing parents a specific process for reinstating their rights. However, this does not automatically mean that appealing the termination of parental rights is impossible. Strategies for Reinstating Parental Rights in Florida In Florida, there are several ways to make a strong case for reinstating your parental rights, including the following options:
Signing a Consent to Surrender Parental Rights It is important that a parent asked to surrender rights or sign a consent fully understand the documents before signing. Once a parent signs a consent or surrender of parental rights and the document is executed correctly, “undoing” the document is complicated. The parent will need to provide evidence their signature was obtained through fraud or deceit or that the document was otherwise executed in violation of Florida law. Appealing a Final Judgment Terminating Parental Rights in Florida The parent can appeal from the final judgment that terminated his or her parental rights. Additionally, if the court issued a separate order of disposition, the parent has a right to appeal based on that order. The order terminating parental rights permanently severing the legal bond between the child and parent. The trial court must find that legally recognized grounds exist for removing the parent’s rights. They will need to prove one of the acceptable grounds for terminating parental rights based on clear and convincing evidence. The court also must find that the termination of parental rights is in the best interest of the child. Determining what is in the best interest of the child requires the court to analyze several different factors. These factors include the parent’s ability to care for the child, any sustainable permanent custody arrangement with a child’s relative, the parent’s ability to care for the child’s safety, well-being, not endanger the child, and more. Finally, the court must find that the termination of parental rights is the least restrictive means of protecting the child from serious harm. As a result, the department of children and families must prove that they made a good-faith effort to rehabilitate the parent and reunite the parent and child through a case plan for the child. Appealing the court's decision to terminate parental rights will involve carefully reviewing the trial court record. The parents must find a reversible error that occurred during the trial court proceeding. As with other types of appeals, it is not enough for the parents to disagree with the lower court's factual finding that the parental rights should be terminated. Instead, the parent must show that the court made a legal error made by the trial court judge in violation of Florida law or constitutional law. Who Can Appeal a Termination of Parental Rights? Under Florida law, any child, parent, or Guardian Ad Litem of any child or any other party to the preceding affected by the court's order can appeal the decision to the appropriate District Court of Appeal. When someone appeals the Court's order, the state will sign an attorney to represent the Department of Child Services. If your child is awaiting adoption, the adoption process will be suspended until the appeal is decided. How to Appeal a Non-Final Judgment Terminating Parental Rights Courts can also issue a non-final order terminating parental rights under Florida Rule of Juvenile Procedure 8.279. Parents must appeal a non-final order within 30 days of the order. If a non-final order does not fall within the type of orders described in Rule 9.130, they will not be able to appeal the order. However, the parent may file a petition for writ of certiorari when specific requirements have been met within 30 days of the non-final order being decided. Successfully filing a writ of certiorari is rare, however. Contact an Experienced Florida Appellate Lawyer Today If your parental rights have been terminated, it is understandable to experience a wide range of emotions, including hard break and anger. While it is not impossible to have your parental rights reinstated, it is certainly not an easy process in Florida. You need an aggressive, experienced appellate lawyer on your side. Likewise, if you were representing a parent who would like to appeal the termination of parental rights, you will benefit from consulting with an experienced Florida appellate lawyer. Handling an appellate case involving parental rights in Florida requires a unique skill set. Attorney Donna Solomon of Solomon Appeals, Mediation & Arbitration is an award-winning appellate lawyer with extensive experience. She also offers consultative services to other Florida attorneys. Contact us today to schedule your initial consultation.  A civil appeal is not simply another trial in front of a new judge. Instead, when you appeal a civil verdict, your lawyer will need to present a legal argument to a panel of appellate judges. Your lawyer will not be presenting evidence and questioning witnesses, but will make written arguments on specific issues of law. After the appellate court proceedings, the panel reviewing your case will issue a guilty verdict or not guilty and rule in one party’s favor.
The Three Possible Outcomes of Florida Appeals Appellate courts can either affirm, reverse, modify, or remand the trial court’s order. After the appellate court panel has reviewed all of the legal arguments and briefs, they will issue a decision, doing one of the following:
How the Appeals Process Works When the court issues a final decision, the losing party has the right to file an appeal. You will not be able to appeal if the court issued a temporary order in most cases. Your appeal must be based on a legal error that the trial court made. In other words, your lawyer will need to demonstrate that the lower court made an error in fact or law to appeal your case successfully. For example, the trial court may have misunderstood or overlooked an important fact. Or, the trial court judge may have misinterpreted existing Florida law or inappropriately used their discretion. What to Do After Your Appeal is Affirmed When the appellate court affirms the lower court’s decision, they state that the lower court’s decision was correct and made without error. The appellate court will affirm the lower court’s ruling when the evidence supports the decision. The lower court judge offers an explanation for that decision that is in line with Florida law. Florida appellate courts will evaluate your case and assess how the lower court came to its final decision. If the appellate court affirms your appeal, your lawyer may need to file a petition for your appeal to be reheard by the appellate court. You will need to file this petition within 30 days of the court’s decision. Needing these filing deadlines is crucial. If you miss a deadline, you could miss your case to appeal the decision. After you file your petition to have your appeal heard, the court will schedule a rehearing. The reasoning may result in modifying the court's decision, but the appellate court will simply clarify the final order in many cases. What Happens When the Appellate Court Modifies the Decision? A modification happens when the appellate court makes changes to any part of the trial court's decision. When the appellate court modifies the decision, they have determined that the trial court judge made one or more errors in law or fact. Instead of reversing or amending the trial court's final order, they may change it based on the evidence provided. The changes made by the appellate court can become part of the lower court's decision. The appellate court will typically remand the case back to the lower courts to be reheard with these changes in mind. What Happens When the Appellate Court Remands the Case? A remanded appeal means that the appellate court sends your case back to the lower court. The appellate court will remand the case when it finds that the lower court judge made an error related to the facts in your case or the law, as it applies to your case. Errors in procedure, improper rulings, and the exclusion of admissible evidence can result in a lower court's decision being overturned and sent back down to the trial court to take further action. Keep in mind that the appeal itself does not equate to a new trial. You will not be able to submit new evidence in an attempt to modify or overturn the order issued by the lower court. When your case has been remanded back to the trial court, you have a second opportunity to win your case. A remanded appeal will begin the trial process all over again, and it is essential that you work with an experienced lawyer who will represent your best interests. Where to File an Appeal in Florida The appeals process is an entirely different process than the trial court process. Understanding the timeline for filing appeals and the requirement for submitting a notice of appeal is crucial. In most civil cases in Florida, the party who lost at trial can file a notice of appeal and pay a filing fee. Parties have 30 days from the date of the final order to file a notice of appeal. The rules of civil procedure are complex and can be intimidating. The 30-day deadline to file a notice of appeal comes fast, and if you wait until day 31, you will be too late. You cannot fix a late notice of appeal. Even though courts can sometimes be forgiving, they still can dismiss your appeal before you can even argue the merits of your appeal. Whether you would like to appeal a decision that was not in your favor, or you are an attorney who is unfamiliar with the appeals process, we recommend consulting with an experienced civil appellate lawyer. Contact a Florida Appellate Lawyer Today Are you considering appealing the verdict in your case? Handling an appellate case in Florida requires a unique skill set. Attorney Donna Solomon of Solomon Appeals, Mediation & Arbitration is an award-winning appellate lawyer with extensive experience. She also offers consultative services to other Florida attorneys. Contact us today to schedule your initial consultation.  This Wednesday, Donna Solomon will be presenting at "While Heading Toward Trial I Tripped into an Appeal: What Business Litigators Need to Know to Preserve the Record for Appeal."
The live webinar will take place 12:00 P.M. – 1:00 P.M. The webinar will be hosted by Lorna Brown-Burton, who is currently running to serve as President-Elect of the Florida Bar, and Cole, Scott & Kissane, P.A. |
AuthorDonna Greenspan Solomon, Esq., handles business-related litigation and appeals (state and federal), mediation, and arbitration. Archives
August 2021
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