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T.H.v. State

Florida Court of Appeals, Fourth District

August 30, 2017

T.H., the Father, and S.D., the Mother, Appellants,
v.
STATE OF FLORIDA, DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Consolidated appeals from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Alberto Ribas, Jr., Judge; L.T. Case No. 14-826 CJ-DP.

          Lori 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.

          Pamela 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 Program.

          Ciklin, J.

         In 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.[1] 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.

         The 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.

         About 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).

         In May 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.

         After a 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."

         The 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.

         As to 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 ...


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