final until disposition of timely filed motion for rehearing.
appeals from the Circuit Court for the Seventeenth Judicial
Circuit, Broward County; Alberto Ribas, Jr., Judge; L.T. Case
No. 14-826 CJ-DP.
D. Shelby, Fort Lauderdale, for appellant T.H., the father.
Richard F. Joyce of the Law Office of Richard F. Joyce, P.A.,
Miami, for appellant S.D., the mother, as to T.D.H.
Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz,
Assistant Attorney General, Children's Legal Services,
Fort Lauderdale, for appellee.
Matthew Charles Wilson, Sanford, for Guardian Ad Litem
these consolidated appeals, T.H. ("the Father") and
S.D. ("the Mother") appeal the final judgment
terminating their parental rights. The Father appeals with
respect to two children, S.H. and T.D.H.; the Mother appeals
with respect to T.D.H. We affirm as to
the termination of the Father's rights as to S.H., but we
reverse the portions of the judgment terminating the
parents' rights as to T.D.H.
Mother and the Father are the parents of S.H., born in July
2014, and T.D.H., born in November 2015. Days after her
birth, S.H. was sheltered based on allegations of domestic
violence and drug use. She was placed in the care of a family
friend and the parents were granted supervised visits.
one month later, the Department of Children and Families
("the Department") petitioned for an adjudication
of dependency. After the parents failed to appear for the
adjudicatory hearing and consents were entered on their
behalf, the Department was unable to locate the Mother and
the Father for many months. Ultimately, in March 2015, the
Department petitioned to terminate the Mother's and
Father's parental rights as to S.H. With respect to the
Father, the Department alleged only one ground, abandonment
under section 39.806(1)(b), Florida Statutes (2015).
2015, the parents were arrested for burglary after an alleged
altercation at the home of S.H.'s caretaker. Meanwhile, a
review hearing was set for December 2015 in the termination
proceedings. A few weeks before the review hearing, the
Mother gave birth to T.D.H. Days later, the Department filed
a shelter petition with respect to T.D.H., and the child was
ultimately placed with his paternal grandmother. In November
2015, the Department filed a supplemental petition for
termination of parental rights with respect to T.D.H.,
alleging a failure to substantially comply with the case plan
under section 39.806(1)(e)1., Florida Statutes.
multi-day adjudicatory hearing, the trial court granted the
petition and supplemental petition, and issued a lengthy
judgment which included findings that the Department met its
burden of proof "as to the allegations in the Petitions
to Terminate Parental Rights, " and that termination was
based on "the allegations set forth in the Petitions for
Termination of Parental Rights."
Mother and Father argue that the termination with respect to
T.D.H. constitutes error, as the Department did not plead a
valid ground for termination. The Department and the Guardian
Ad Litem ("GAL") concede error but argue that
unpled grounds were tried by implied consent and established.
We accept the concession of error but reject the invitation
to find that unpled grounds were tried by implied consent.
T.D.H., the Department based its request for termination of
parental rights on section 39.806(1)(e)1., which permits the
termination of ...