R.P., APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, STATE OF FLORIDA, APPELLEE
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The court held that the trial court abused its discretion by denying a brief continuance and entering a default judgment terminating parental rights.
[1] A trial court abuses its discretion by refusing a brief continuance when a parent is making reasonable efforts to attend a termination of parental rights hearing and is d…
[2] The termination of parental rights requires punctilious regard for the due process rights of the parent.
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Join FLexlaw to unlock all legal intelligenceThe Department of Children and Families (DCF) initiated a termination of parental rights (TPR) case against a father who was incarcerated and then rel…
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FARMER, J.
This case began as a dependency case, in which the Department of Children and Families (DCF) initially named the wrong man as the father. Several months after filing, DCF learned the identity of the actual father but could not locate him. Nearly a year after the initial filing, DCF dropped the dependency claim and refiled the matter as an action seeking a termination of parental rights (TPR).
DCF finally located the actual father in state prison. The trial judge ordered the father to be brought from his incarceration for an advisory hearing, but learned on the day of the hearing that the father had not been served with notice because of his release from prison. The court then rescheduled the hearing and the father was served barely four weeks before the rescheduled hearing date. When the hearing began, a lawyer appeared on behalf of the father. As the lawyer explained to the court:
“I got five calls from my client yesterday afternoon asking whether he needed to be here. When I called back, first there seemed to be a confusion. My receptionist told him he didn’t. When I called back — it was 5:45 — to tell him he did need to be here. He lives 200 miles away; he does not have a vehicle; the only car rental place in that town closed at 5:00 o’clock. He could rent a car this morning and drive here, but couldn’t be here by 9:00 o’clock. If the Court could just reschedule this to this afternoon, he would be here.”
DCF thereupon moved for a default against the father, but the court continued the case until the afternoon.
As the afternoon session convened the father still was not present. However, his lawyer explained that:
“I spoke to them as soon — to the grandmother — as soon as I got out of Court. They are 200-240 miles away approximately. They have an old pick-up truck. They were heading down here. [W]hen I got into the Court, I knew that they were on their way here. They were hoping to get here at least by 2:30.”
The lawyer asked for a further limited continuance until their arrival. DCF renewed its motion for default. The trial court granted the default and terminated the parental rights of the father.1 He appeals. We reverse.
We regard the trial court’s failure to grant a further continuance — say, until the following day — to be an abuse of discretion.
The record shows that after the father was finally served with a notice to appear, the advisory hearing was his first required appearance, despite the fact that the case had been pending for nearly two years. The lawyer made clear that the father was actually en route to the hearing and that he intended to be there personally. This advisory hearing occurred within a short time after the father was first served; there is no indication of stalling or disregard by the father. The fact that the case had been pending for two years before this particular hearing is not attributable to any delay or abuse on the part of the father. The requested continuance was for a short time — only until the next day, at worst — and there is no showing in the record that such a brief continuance would have had adverse consequences to the child. In short, there was not a single valid reason to refuse the continuance, but several good ones to grant it.
So important is the parent-child relationship that the termination of it may be accomplished by the state only with a punctilious regard for the due process rights of the parent. See Santosky v. Kramer, 455 U.S. 745, 758, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); J.B. v. Fla. Dep’t of Children & Family Services, 768 So. 2d 1060, 1064 (Fla.2000) (“[t]he significance of the rights at issue here cannot be overstated”).
In cases under chapter 61, this court “has always been of the opinion that custody should never be determined on a default basis.” Webber v. Novelli, 756 So. 2d 164, 165 (Fla. 4th DCA 2000).
Surely that policy is no less applicable when parental rights are sought to be ended. While the statute does actually authorize a default at the advisory hearing in TPR cases,2 courts should ordinarily refrain from determining a termination of parental rights by default where an absent parent is making reasonable effort to be present at the scheduled hearing and is delayed by forces or circumstances beyond the parent’s control. We stress that there is nothing in this record hinting at any harm to the child by further delay. Nor does DCF contend that the child requires immediate permanency.
REVERSED.
GUNTHER and MAY, JJ., concur. . The father actually arrived at the courthouse barely an hour after the hearing had ended.
. See § 39.801(3)(d), Fla. Stat. (2001) (“If the person served with notice under this section fails to personally appear at the advisory hearing, the failure to personally appear shall constitute consent for termination of parental rights by the person given notice.”).
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In the Interest of A.N.D. v. Dep't of Child. & Fam. Servs., 883 So. 2d 910 (Fla. 2d DCA 2004)…determining a termination of parental rights by default when an absent parent makes a reasonable effort to be present at a hearing but is prevented or delayed by circumstances beyond the parent’s control. R.P. [*915] v. Dep’t of Children & Families, 835 So. 2d 1212, 1214 (Fla. 4th DCA 2003); S.C., 877 So. 2d at 833; see also G.A. v. Dep’t of Children & Family Servs. (In re I.A.), 857 So. 2d 310, 312 (Fla. 2d DCA 2003). Florida public policy favors an adjudication on the merits over the entry of a default, and…
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B.H., SR. v. Dep't of Child. & Families, 882 So. 2d 1099 (Fla. 4th DCA 2004)…’t of Children & Families, 877 So. 2d 831, 832 (Fla. 4th DCA 2004). However, this court has made it clear that constructive consent in termination of parental rights cases should be a disfavored result. See id.; R.P. v. Dep’t of Children & Families, 835 So. 2d 1212 (Fla. 4th DCA 2003). Custody and termination of parental rights should never be determined on a default basis or by “gotcha” practices when a parent makes a reasonable effort to be present at a hearing and is delayed by circumstances beyond his cont…
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E.A. v. Dep't of Child. & Families, 894 So. 2d 1049 (Fla. 5th DCA 2005)…ve or implied consent based on late arrival to a hearing in termination of parental rights cases is a disfavored result. [*1052] See S.C. v. Dep’t of Children & Families, 877 So. 2d 831, 833 (Fla. 4th DCA 2004); R.P. v. Dep’t of Children & Families, 835 So. 2d 1212, 1214 (Fla. 4th DCA 2003). The reason is obvious. A natural parent has a “fundamental liberty interest” in his or her offspring that is protected under the due process umbrella. See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982)
- J.B. v. Fla. Dep't of Child. & Fam. Servs., 768 So. 2d 1060 (Fla. 2000)
- Betty v. State, 756 So. 2d 164 (Fla. 4th DCA 2000)