Petition for Writ of Certiorari — S. J., Mother of A. C. and A. W., Each a Minor Child, Petitioner v. Department of Children and Families

No.

IN THE SUPREME COURT OF THE UNITED STATES

S.J, mother of A.C. and A.W., each a minor child,

Petitioner,

Vv.

DEPARTMENT OF CHILDREN AND FAMILIES

>

Respondent.

On Petition for a Writ of Certiorari to

the Supreme Court of the State of Florida

PETITION FOR A WRIT OF CERTIORARI

ROBERT J. SLAMA

Counsel of Record

ROBERT J. SLAMA, P.A.

6817 Southpoint Parkway, Suite 2504

Jacksonville, Florida 32216

Tel: (904) 296-1050

Fax:(904) 296-1844

Email: support@RobertJSlamaPA.com

Counsel for the Petitioner

I. QUESTION PRESENTED

Whether an indigent Mother whose parental rights are terminated is denied

equal protection and due process of law when an appointed appellate counsel

withdraws without filing a brief on the merits or an Ander's brief and before she

can file the initial brief after retaining private counsel is dismissed the next

business day foreclosing any “meaningful review” of the termination proceedings?

y y g

Il. TABLE OF CONTENTS

I, QUESTIONS PRESENTED os ssscssssssssssssesssssossssseesessssutsuvssssssststtateeeeesceeecccc. 2

I. TABLE OF CONTENTS .....ccssssssscssssssssssvossestussssesststssstsssssnesssusessieeeeeesccc. 3

HL TABLE OF AUTHORITIES .....cscccccccccsssssssssssssssssssssscsssssssssstteeeeeeeeceeeccccc 5-6

IV. PETITION FOR WRIT OF CERTIORARI oecccccccccccccccsscccssesecseeceecccccccccccce. 7

V. OPINIONS BELOW .......cccssscsscsssssssssscesssssssssssssensessssssssssssssesseseesetseeeeeceeseeccecccc 7

VI. SURISDICTION...ssccsssssssssssssssssssssssssseesssssssevususasssssssssssssssspusstansesseeeeseeeccccc 8

VII. CONSTITUTIONAL PROVISION INVOLVED vetessssssssssssssssssssssesseeseccce 8

VIII. STATEMENT OF THE CASE o....essesssssssssssssssssssesssssissssssssstssttaseeeeeeeeeececce 8

IX. REASON FOR GRANTING THE WRIT eeccccssscccsccsscccsccscccssseteccceccccccccccccce, 20

X. CONCLUSION AND PRAYER FOR RELIEF...ssssssesssccscccsseccssscseessscessscce 22

INDEX OF APPENDICIES

APPENDIX 1 Florida Supreme Court Order of Dismissal

APPENDIX 2 1“ DCA Order of Dismissal 10/26/20

APPENDIX 3 — Appellant’s Motion for Rehearing 12/10/20

APPENDIX 4 Corrected Order 1° DCA Denying Rehearing 1/20/21

APPENDIX 5 1“ DCA Order Denial Motion to Vacate and Reinstate

APPENDIX 6 Appellant’s Motion to Reinstate and to Vacate Appeal

APPENDIX 7 Order 1* DCA 9/21/20 Denying Request for Counsel

APPENDIX 8 Order Granting Withdrawal 9/16/20

APPENDIX 9 —_ Notice of Appearance of Counsel 10/23/20

APPENDIX 10 Notice of Compliance 9.23.20

1. TABLE OF AUTHORITIES

Federal Cases

Boddie v. Connecticut, 401 U.S. 371 (1971)..cccccccccccccsccceveceeceeeccccc. 10, 17,21

Griffin v. Illinois, 351 U.S. 12 (1956)... eee ceccceceseceuceceaeseeaeeesueeeens 10, 17

Lindsey v. Normet, 405 U.S. 56 (1972)... eee cence eccceeesa sete eetubeseneceeens 10

Lassiter v. Department of Social Services, 452 US. 18, 24 (1981)... a, 10,21

Loving v. Virginia, 388 U.S. 1 (1967)... oe cec cece eeeecueesseeeeeseeeseuueesecass 17

Meyer v. Nebraska, 268 U.S. 510 (1925) ..0...ecccecccssececececeeseccececeeesccccc 17

Mayer v. Chicago, 404 U.S. 189 (1971) ......0cceccececeseccescsseecceveceeeeeeecce. 17

MLB. v. CL. J. 519 U.S. 102 (1996)... ccc ccceceeceesecccsecsevsceeteteeeeetecccccc. 21

N.S.H. v. Dept’t of Children & Family Services, 843 So. 2d 898 (Fla. 2003)...... 21

Pierce v. Society of Sisters, 262 U. 8. 390 (1983)... cccceceeecaeeeneeeauee 17

Santosky v. Kramer, 455 U.S. 745, 753 (1982)... cccceeeeceeteseueeerannees 21

Skinner v. Oklahoma ex rel. Williamson, 316 U. 8. 535 (1942). eee 17

Turner v. Safley, 482 U.S. 78 (1987) coc coc ces cec ces ces cesses ec eee cee cee vette crease eer een LF

Zablocki v. Redhail, 434 U. 8.374 (1978)... coe cecceeseeccccuseeaeeseceuneevenss 17

Federal Statutes

28 U.S.C. § 1257. ieee cece ce cceseeevtreeeenstesersiteteiteteteteeee 8

State Cases

K.S.M, 61 S.W.3d 632 (Tex.App. 2001)... cece ceeeecceeccsesaueeeesevesccunersens 19

in re Christopher B., No. 1099-1065, 2000 WL 281739 (Ohio Ct. App. Mar. 17,

2000). eee eee eect tec ces eset eetsenateecsestesvettevstetutvitievesiteetess 19

In the Interest of D.C., 963 P.2d 761 (Utah App. 1998)... cece cee. 19

JK. v. Lee County Dep't of Human Res., 668 So.2d 813 (Ala.Civ.App. 1995)....19

Inve V.E.., 417 Pa Super. 68, 83-84, 611 A.2d 1267 (1992)... cece eee 19

Inre Jamie C., 1990 Conn.Super. LEXIS 1869 (Conn.Ct.App.1990). 20.0... 19

Morris v. Lucas County Children Srvs., Bd., 49 Ohio App.3d 86, 550 N.E.2d 980

(Ohio App. 1989)... cece eceeetecsteceseestesettstettetstviteseivetere 19

N.S.H. v. Dept't of Children & Family Services, 843 So. 2d 898 (Fla.

2003) .-csevsssssssssssnsnnssseesececcsesssssotsstutitanmsssssssesestssassssnsssttstesiuutssecseseeeeesececs. 21

In the Interest of J.R.W., 149 Wis.2d 399, 439 N.W.2d 644 (1989)... 19

Inre Keller, 138 2 V.V 7 Ill.App.3d 746, 486 N.E.2d 291 (1985)..0.....eeccecee ee 19

Rules

Supreme Court Rule 13.1.0... ccscccecceseessevesevecsetsssacvesesseeeeseeececc. 8

Other

Pastore, Caire, Life After Lssiter: An Overview of State-Court Right-to-Counsel

Decisions, Journal of Poverty Law and Policy, July 2006.0... cieccs cece acces 17

IV. PETITION FOR WRIT OF CERTIORARI

The Mother, Stephanie Jones, petitions the Court for a writ of certiorari to

review the Order of the Florida Supreme Court dated February 18, 2021.

V. OPINION(S) BELOW

The February 18, 2021, order of the Supreme Court of Florida dismissing

the petitioner's appeal is unreported and is reproduced in the appendix to the

petition for writ of certiorari, p. 1. The order of the trial court terminating the

parental rights of petitioner and Motion for Rehearing is unreported and is

reproduced at Pet. App. 2. The order of the First District Court of Appeal, which

dismissed the appeal on October 26, 202, and a Motion to Reinstate Appeal on

November 5, 2020, which was denied after rehearing (December 10, 2020) on

January 14, 2021, Dismissing an Appeal of the Court’s Final Judgment

Terminating the Mother’s Parental Rights to Minor Children and Permanent

Commitment and Disposition following hearing by the Honorable Mallory

Cooper, Circuit Court Judge, and the Corrected Order Denying the Motion for

Rehearing which are unreported and is reproduced at Pet. App. 3, 4, 5, 6.

VI. JURISDICTION

The judgment of the Supreme Court of Florida dismissing the petitioner's

appeal was issued on February 18, 2021. See Supreme Court Rule 13.1. Pet. App.

1. The mandate of the Supreme Court of Florida, confirms the date of the

dismissal and that no motions for rehearing will be considered. The petition for

writ of certiorari was timely filed on July 18, 2021. This Court's jurisdiction is

invoked pursuant to 28 U.S.C. § 1257.

VII. CONSITUTIONAL PROVISIONS INVOLVED

This case involves the Fourteenth Amendment to the United States Constitution,

which reads in relevant part as follows:

-...No state shall . . . deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the equal protection

of the laws.

VIN. STATEMENT OF THE CASE

A. SUMMARY OF THE ARGUMENT

One of the most fundamental rights that can be adjudicated in a court of law

is the right inherent in a parent's relationship with his or her child. The State of

Florida utilizes a rule of procedure on appeal which permits -- after a court

appointed attorney for a litigant who is indigent -- dismissal if the litigant relying

on Counsel to file a brief on appeal elects not to challenge the decision by

dismissing the case without any further notice. The Mother sought to obtain

another attorney by appointment which was denied, and then attempted to file on

her own and was unable to prepare a brief. She then secured Counsel who filed a

Notice of Appearance on October 23, 2020. The next business day the appeal

after Counsel appeared on her behalf the case was dismissed. The Mother's

attorney had filed a Motion to Reinstate and Vacate the Dismissal, which was

denied as well.

Florida fails to provide the litigants with a level of care that is appropriate

given the stakes involved when a Mother's parental rights are terminated. The

Mother has sought to comply with a letter which informed of her what to do and

no clear guidance on how to comply or face dismissal of the action. The Florida

Supreme Court will not review such dismissals. The constitutional propriety of

this sort of practice in this case -- involving the termination of the fundamental

rights encompassed by a parent's relationship with her child -- is clearly

unconstitutional. It precludes judicial review of the trial court’s errors as if there

was never an attorney appointed in the first instance.

A significant line of precedent from this Court has applied the Fourteenth

Amendment to protect the rights of its citizens regardless of their financial status

and ability to secure Counsel in order to pursue fundamental legal interests

through existing avenues in state judicial systems.

This Court has recognized and sought to address the litigant's access to

Counsel by ensuring financial ability was not a bar to review beginning with

Griffin v. Illinois, 351 U.S. 12 (1956), which held that a citizen could not be

precluded from an appeal available to others simply because he could not afford to

pay for a transcript of the trial. The rationale of that line of precedent also has been

applied by this Court in a civil case, Boddie v. Connecticut, 401 U.S. 371 (1971),

where fundamental rights were at issue, and has played a part in this Court's

resolution of a civil appeal involving the interests of indigent appellants. Lindsey

v. Normet, 405 U.S. 56 (1972). Ina separate line of precedent, this Court has held

that fundamental rights are implicated when a parent's relationship with his or her

children is threatened through a state court parental termination proceeding.

Lassiter v. Department of Social Services, 452 U.S. 18, 24 (1981); Santosky v.

Kramer, 455 U.S. 745, 753 (1982).

In the State of Florida, the litigant is provided with court appointed

Counsel; however, that appointed counsel may waive any challenge by notifying

the Court of Appeals that counsel does not believe there are any issues for review.

The Court of Appeals notifies the pro se litigant upon his withdrawal that she must

act on her own now -- placing her back in the very position she was in prior to the

appointment of counsel. As she acts to secure counsel or file on her own behalf,

she secures counsel who files a Notice of Appearance. Yet the Court of Appeals

dismissed the case the following business day.

There are many irregularities which have fundamentally affected this -

Mother's attempt to secure review of the trial court's decision. If the petitioner

could have afforded private Counsel to file a brief on appeal (prior to the

dismissal), the appeal certainly would have been a meaningful appeal. The case

being dismissed without opinion resulted in the State of Florida denying any

discretionary review to review the termination proceedings.

1]

Given the fundamental nature of parental rights and Florida's use of a

procedural rule that deprives the Mother of an attorney that she sought initially or

sufficient time to obtain counsel, this practice violates both the Due Process and

the Equal Protection Clauses of the Fourteenth Amendment and deprives her of

meaningful access to the courts. If she had the ability to afford Counsel for the

appeal, she would not have been deprived the access to the courts that she

earnestly sought to address the State's deprivation of a fundamental liberty

interest.

There are few interests in civil litigation more important than those which

arise in parental termination cases, and a reversal of the Florida Supreme Court in

this case will not necessarily require states to permit unlimited litigation when an

in forma pauperis appeal is pursued. It only requires providing the litigant a

meaningful opportunity to secure counsel. If the initial attorney appointed is not

going to pursue the appeal, additional safeguards must be in place to ensure the

litigant can proceed to a meaningful review. Simply sending a letter that the

litigant has to act without any assistance or access to an attorney in the interim to

advise how to precede is tantamount to no counsel at all.

The Florida Supreme Court's decision to dismiss the case is not supported

by an interest sufficient to Justify the refusal to review an in forma pauperis appeal

of a parental termination case such as this one.

B. ARGUMENT

The Petitioner, Stephanie Jones, is a single-parent mother whose husband

became abusive (due to PTSD) and resulted in divorce and separation. Jones was

effectively raising the minor children alone. The State of Florida removed the

children from the home and sought reunification, which was appropriate. Ms.

Jones did everything she was required to do and completed her plan. Yet, the

State of Florida sought to terminate her parental rights. At trial, she presented

evidence regarding the problems she had with obtaining referrals, and obtaining

timely information regarding her progress. At the time of the TPR advisory, there

was no justification for the reunification plan continuing.

After a trial, the trial court terminated her parental rights — and took 180

days to issue and order (which contained inconsistent findings and inaccuracies).

On appeal to the First District Court of Appeals, Ms. Jones required court

appointed counsel, who later withdrew. After the withdrawal, Ms. Jones began

looking for private counsel and acted with due diligence to comply with the

court’s request. Being pro se, she could not alone file the brief on appeal. When

she obtained Counsel, he filed a notice of appearance on October 23, 2020, and the

Court of Appeals dismissed the case the following Monday, October 26, 2020,

Counsel filed a Motion to Reinstate the Appeal and Vacate the Dismissal on

November 5, 2020, which was denied on November 25, 2020. Counsel filed a

motion for rehearing on December 10, 2020, which was denied on January 14,

2021. A timely motion for rehearing was filed and a corrected Order entered on

January 20, 2021. On February 15, 2021, Counsel appealed to the Florida

Supreme Court, and the appeal was dismissed on February 18, 2021.

After the withdrawal of Brian Cabrey, Esquire on September 16, 2020, the

Petitioner did not receive any assistance from the Court or the appointed Counsel

to file anything. The Petitioner sought the appointment of counsel on September

21, 2020 which was denied on September 23, 2020. The withdrawal of counsel

did not require the filing of an Anders brief or any document to toll the time for

her to act pro se. Twenty days is not enough time to provide a pro se brief or to

obtain counsel. The Petitioner was left without any assistance to pursue the appeal

within that time.

Among the most important of human relationships is that between a parent

and a child. The birth of a child is a meaningful and life-altering event, and the

process of parents having children is perhaps the defining feature of the ongoing

existence of our living culture.

As part of the protection of children from egregiously harmful situations,

however, the State has the power to terminate, through the operation of the law,

the relationship between a parent and a child. This termination of parental rights is

something that goes far beyond the legal determination of the proper physical

custody of a child, which can occur if there is the breakdown of a family or the

dissolution of a marriage. For even when custody exists in one parent or the other

after a divorce, the remaining parent can still play a role in the child's life, can still

see the child, and can still be with the child for significant periods of time, even if

they are not living together on a constant basis. But when a State, operating

through its court system and its Judges, terminates parental rights, it completely

dissolves the relationship between a parent and a child.

This is true not only as a legal matter, but also as a practical matter. A

termination of parental rights deprives a parent of any right to see his or her child

or to play any role in the child's life. It can mean that a father is no longer a father,

or as in this case, a mother is no longer a mother of two children. She is no longer

a mother in the eyes of the law, and is no longer a mother in the day-to-day

passage of life.

This ability to terminate a relationship between a parent and a child

encompasses an awesome power and entails an awesome responsibility. There are

legitimate reasons, of course, for this power, but only if it is exercised carefully.

As part of the exercise of this power, the State of Florida has chosen to have the

issue of the termination of parental rights presented in the first instance in any

given case to a single trial court judge -- a trial court judge -- who is elected by the

voters and who sits without a jury. But with a level of care appropriate to the

magnitude of the decision, the process in Florida does not end with this single

judge's decision. Like other states, Florida provides an appeal of right for those

parents who wish to pursue it, so that appellate judges can review the trial judge's

initial determination and reverse the decision if they conclude it is appropriate to

do so.

Unfortunately, in this case, a parent has been excluded from a key

component of this system because she did not have enough money at the time of

the appeal to obtain private counsel. Her parental rights have been taken away by

a single retired judge whose decision, she believes, is grievously wrong as a matter

of fact and law, but because she cannot afford the price that is being charged, she

16

is not allowed to present her case to the appellate judges who otherwise would

hear it and who could restore her rights as a parent to her children.

C. IN CASES INVOLVING FUNDAMENTAL RIGHTS INVOLVING A

SUBSTANTIAL LIBERTY INTEREST, THIS COURT'S PRECEDENTS

PROHIBIT A STATE FROM DENYING ITS CITIZENS ACCESS TO A

COURT SYSTEM, DUE PROCESS, AND EQUAL PROTECTION SIMPLY

BECAUSE THEY ARE POOR, AND ACT WITH DUE DILLIGENCE TO

OBTAIN APPELLATE COUNSEL

This case, much like M.L.B. infra, involve choices about “marriage, family

life, and the upbringing of children are among associational rights this Court has

ranked as ‘of basic importance in our society,’ Boddie, 401 U. S., at 376, rights

sheltered by the Fourteenth Amendment against the State's unwarranted

usurpation, disregard, or disrespect. See, for example, Turner v. Safley, 482 U. S.

78 (1987), Zablocki v. Redhail, 434 U.S. 374 (1978), and Loving v. Virginia, 388

U. S. 1 (1967)(marriage); Skinner v. Oklahoma ex rel. Williamson, 316 U. S.

535 (1942)(procreation); Pierce v. Society of _ Sisters, 262 Uz S.

390 and Meyer v. Nebraska, (1923) (raising children)." See Pastore, Caire, Life

After Lassiter: An Overview of State-Court Right-to-Counsel Decisions, Journal of

Poverty Law and Policy, July 2006.

As the Supreme Court recognized in ML. B.'s case, involving the State's

authority to sever permanently a parent-child bond, the Court examined a long line

of decisions that has protected the right of citizens, no matter their financial

Station, to pursue fundamental legal interests through existing avenues in state

judicial systems. To be sure, in Griffin v. Hlinois, 351 U.S. 12 (1956), the

Supreme Court noted that a state is not required by the Constitution to provide an

appeal in a criminal case. But where a state does so, the Court held, it also must

provide indigent persons a transcript, or its equivalent, at state expense so they can

take advantage of the appeal option irrespective of their financial poverty. This

result, said the plurality opinion in Griffin, is compelled by the Due Process and

Equal Protection Clauses of the Fourteenth Amendment. /d. at 18-20.

As stated by the plurality opinion in Griffin:

There is no meaningful distinction between a rule which would deny the

poor the right to defend themselves in a trial court and one which

effectively denies the poor an adequate appellate review accorded to all

who have money enough to pay the costs in advance.

id. at 18. The four-justice plurality in Griffin was joined in the result by

Justice Frankfurter, who said in his concurrence:

[W]hen a State deems it wise and Just that convictions be susceptible to

review by an appellate court, it cannot by force of its exactions draw a

line which precludes convicted indigent persons . . . from securing such

areview........ If [a State] has a general policy of allowing criminal

appeals, it cannot make lack of means an effective bar to the exercise of

this opportunity.

Id. at 23-24 (F rankfurter, J., concurring).

While the several States are not required to provide an appeal, if the State

does it must also provide an indigent petitioner with a full opportunity to defend

themselves. Here, the Mother sought only to have a meaningful review after the

Court terminated her parental rights. Her appellate attorney Mr. Cabrey failed to

file an appeal and moved to withdraw, which motion was granted on September

16, 2020. After that withdrawal, the Mother sought to comply with the Order

directing her to obtain new Counsel or file a brief on appeal pro se. The Order

stated that the “Appellant may, within 20 days of service of counsel’s notice of

compliance, file with the Clerk of this Court an initial brief.” Mr. Cabrey

certified on September 23, 2020 that he provided her with a complete copy of the

record. She could not comply and review a record within 20 days and file the brief

on or before October 13, 2020. Instead, she sought to obtain monies from friends

to hire an attorney, and after she did Counsel appeared and filed on October 23,

2020. After doing so, the Court of Appeals dismissed the appeal without opinion

the following Monday on October 26, 2020.

The Court of Appeals failed to provide her with a meaningful opportunity to

secure new counsel, review the entire record and transcript, and to file an initial

brief. Despite Counsel's efforts to reinstate the appeal and vacate the dismissal,

the Court denied the motion to vacate the dismissal and reinstate the appeal on

November 25, 2020.' In that Motion, Counsel also requested upon reinstatement

additional time to complete the filing of the initial brief.

Although Anders review should be required upon withdrawal as the

attorney for the parent may make a mistake, it is not a procedural safeguard

provided. Mistakes do happen. Alternatively, the attorney may not be diligent or

may be insufficiently skilled. An unenthusiastic attorney is likely to rubber-stamp

the appeal and file a motion to withdraw. Court-appointed juvenile attorneys are

typically under-compensated, thus increasing the need to take on an increasing

number of cases to make ends meet. It is therefore possible that an appeal could

slip through the cracks of a busy juvenile practice.

In this case, the Petitioner did obtain new counsel while the case was

pending and upon filing the Notice of Appearance, the Court of Appeals dismissed

the appeal the next business day -- foreclosing any opportunity to obtain review or

request an extension of time.

"Tn fact, the majority of states apply Anders to termination of parental rights or juvenile dependency proceedings.

See In the Interest of K.S.M., 61 S.W.3d 632 (Tex.App. 2001); In re Christopher B., No. L099-1065, 2000 WL

281739 (Ohio Ct. App. Mar. 17, 2000); In the Interest of D.C., 963 P.2d 761 (Utah App. 1998); LK. v. Lee County

Dep't of Human Res., 668 So.2d 813 (Ala.Civ.App. 1995) (juvenile dependency); In re V.E.., 417 Pa.Super. 68, 83-

84, 611 A.2d 1267 (1992); In re Jamie C., 1990 Conn.Super. LEXIS 1869 (Conn.Ct.App.1990) (not designated for

publication); Morris v. Lucas County Children Srvs., Bd., 49 Ohio App.3d 86, 550 N.E.2d 980 (Ohio App. 1989); In

the Interest of ILR.W., 149 Wis.2d 399, 439 N.W2d 644 (1989); In re Keller, 138 2 V.V. held that a parent’s

invocation of Fifth Amendment rights cannot be taken as an admission of guilt or support an inference of guilt in a

proceeding of dependency or termination of parental rights, even though such proceedings are classified as civil

rather than criminal, where such proceedings bear many of the indicia of criminal trials. 7 Tl. App.3d 746, 486

N.E.2d 291 (1985).

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IX. REASONS FOR GRANTING THE WRIT

The indigent single-parent Mother whose parental rights were terminated

sought meaningful review and followed the in forma pauperis procedures of the

State of Florida. Though she did, she was denied meaningful review after her

court appointed counsel advised of his withdrawal as appellate counsel. Due

process and Equal protection require that a litigant, particularly when a substantial

fundamental liberty interest is implicated, be afforded meaningful access to the

courts. To do otherwise will undermine the long-established decisions of this

Court to ensure that wealth does not provide two sets of justice to its citizens. The

Constitution of the United States has at its core the right of the citizens to obtain

equal justice under the law, to obtain redress for grievances, access to the courts,

and when substantial liberty interests at stake, the litigant has a meaningful

opportunity to challenge the actions of the state.

Justice Anthony Kennedy in his concurring opinion eloquently explained

these important interests in M.L.B. v. CL. J.519 US. 102 (1996) as follows:

The Court gives a most careful and comprehensive recitation of the

precedents from Griffin v. Illinois, 351 U. S. 12 (1956),

through Mayer v. Chicago, 404 U. 8. 189 (1971), and beyond, a line of

decisions which invokes both equal protection and due process

principles. The duality, as the Court notes, stems from Griffin itself,

21

which produced no opinion for the Court and invoked strands of both

constitutional doctrines.

In my view the cases most on point, and the ones which persuade me we

must reverse the judgment now reviewed, are the decisions addressing

procedures involving the rights and privileges inherent in family and

personal relations.

These are Boddie v. Connecticut, 401 U. S.

371 (1971); Lassiter v. Department of Social Servs. of Durham

Cy.,452 U. §S. 18 (1981); and Santosky v. Kramer, 455 U. §.

745 (1982), all cases resting exclusively upon the Due Process Clause.

Here, due process is quite a sufficient basis for our holding.

I acknowledge the authorities do not hold that an appeal is required,

even in a criminal case; but given the existing appellate structure in

Mississippi, the realities of the litigation process, and the fundamental

interests at stake in this particular proceeding, the State may not erect a

bar in the form of transcript and filing costs beyond this petitioner's

means. The Court well describes the fundamental interests the petitioner

has in ensuring that the order which terminated all her parental ties was

based upon a fair assessment of the facts and the law.

See Mathews v. Eldridge, 424 U. S. 319, 335 (1976). With these

observations, I concur in the judgment.

In this case, the State of Florida has utilized a process that terminated

the Mother’s parental rights, and then effectively barred her from ensuring

that the order which terminated all her parental ties was based upon a fair

assessment of the facts and the law — just as Justice Kennedy had instructed.

The Mother filed a motion with the Court seeking the appointment of new

counsel after Mr. Cabrey had withdrawn, which was denied. Then, after she

obtains Counsel and files a Notice of Appearance, the Court again acts but to

22

dismiss the case. The Court relied upon for the dismissal the Florida

Supreme Court’s decision in NSH. v. Dept’t of Children & Family Services,

843 So. 2d 898 (Fla. 2003).

This decision by the Florida Supreme Court must be overruled as it

denies due process and equal protection of the law and conflicts with the

well-established law by the United States Supreme Court and continue to

permit those who cannot afford counsel from obtaining meaningful review.

X. CONCLUSION

The State of Florida has set forth procedural rules which act as a complete

bar to appellate review, which deprive a pro se litigant of a fundamental liberty

interest without due process of law -- by restricting access to any meaningful

review if you are unable to afford an attorney. The Mother and single parent in

this case like so many litigants who are financially unable to afford counsel have

no control over the appointment of that counsel. But when the court appointed

counsel has not submitted any brief on appeal -- and indicates that there is not

going to be any issued raised by counsel and subsequently withdraws -- the

Mother's attempt to secure new counsel to challenge the nisi prius court's ruling

should not be prematurely terminated when she is attempting in "good faith" to

secure new counsel, file the initial brief, and comply with the Court’s Order. To

23

do otherwise is effectively an procedural a bar to challenge or review the

underlying decision which destroys the family unit and which restricts access for

the poor without any meaningful review.

DATED: this 18th day of July, 2021.

24