In the Interest of Dk.C., Ds.C., and DV.C., children.
DEPARTMENT OF CHILDREN AND FAMILIES and GUARDIAN AD LITEM PROGRAM, Appellees. S.C., Appellant,
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Kim Hernandez
A. Palumbo, Jr., Tampa, for Appellant.
Moody, Attorney General, Tallahassee, and Mary Soorus,
Assistant Attorney General, Tampa, for Appellee Department of
Children and Families.
Thomasina Moore, Statewide Director of Appeals, and Joanna
Summers Brunell, Appellate Counsel, Tallahassee, for Appellee
Guardian ad Litem Program.
(the Father) appeals a final order terminating his parental
rights to his children, Dk.C, Ds.C., and Dv.C. We accept the
Department of Children and Families' concession that the
trial court erred in terminating the Father's parental
rights based on failure to personally appear at an
adjudicatory hearing under section 39.801(3)(d), Florida
Statutes (2018). Section 39.801(3)(d) provides the
If a parent appears for the advisory hearing and the court
orders that parent to personally appear at the adjudicatory
hearing for the petition for termination of parental rights,
stating the date, time, and location of said hearing, then
failure of that parent to personally appear at the
adjudicatory hearing shall constitute consent for termination
of parental rights.
Father appeared at an advisory hearing and was told that he
must appear in person at an adjudicatory hearing on a
petition to terminate his parental rights on July 23, 2018,
or his parental rights might be terminated. Three days before
the scheduled adjudicatory hearing, however, counsel for the
parties appeared at a hearing without the parents and
requested that the trial court continue the adjudicatory
hearing. The trial court granted the continuance and
rescheduled the adjudicatory hearing to August 22, 2018. The
trial court stated, "On Monday[, July 23], we'll let
the parents know the new trial date." The Father failed
to appear on July 23, 2018, and the trial court entered a
consent by nonappearance under section 39.801(3)(d) over the
Father's counsel's objection. Thereafter, the trial
court entered a written order terminating the Father's
parental rights based upon his constructive consent.
the Father did fail to show up in court on July 23, 2018, the
adjudicatory hearing was no longer scheduled for that day.
"[S]ection 39.801(3)(d) does not permit a court to
'enter a consent' on account of a parent's
failure to appear at any hearing other than a properly
noticed advisory or adjudicatory hearing." V.D.C. v.
Dep't of Children & Family Servs., 899 So.2d
1193, 1194 (Fla. 1st DCA 2005). The trial court-and the GALP
on appeal-understandably emphasized that the Father was
unaware that the adjudicatory hearing date had changed
because his attorney had been unable to notify him of the
continuance. However, the statute only allows the trial court
to deem a parent to have consented if the parent actually
failed to "appear at the adjudicatory hearing," not
if he failed to appear at a time he had been told there would
the Father had not failed to appear at an adjudicatory
hearing when the trial court entered the consent by
nonappearance, the trial court erred when it terminated his
parental rights. Accordingly, we reverse the trial
court's order to the extent that it terminates the
Father's parental rights and remand for further
in part and remanded.
SILBERMAN and ...