A.M. AND Z.M., APPELLANTS,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, APPELLEE
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The Florida Fourth District Court of Appeal reversed a trial court's refusal to set aside a default judgment in a termination of parental rights case where parents were one hour late due to a mistake about public transportation schedules. The court held that trial courts should ordinarily not enter defaults against parents making reasonable efforts to appear when delayed by circumstances beyond their control.
The trial court abused its discretion in refusing to vacate the default. Under Florida Statutes section 39.801(3)(d), 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.
[1] A default in a termination of parental rights case should ordinarily be set aside when a parent makes reasonable efforts to attend a scheduled hearing and is delayed by c…
[2] A trial court abuses its discretion by refusing to vacate a default judgment terminating parental rights when the parents were delayed for a hearing due to mistaken relia…
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Join FLexlaw to unlock all legal intelligence“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”
Establishes the legal standard for when trial courts should not enter defaults in termination of parental rights cases
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Join FLexlaw to unlock all legal intelligenceParents A.M. and Z.M. were scheduled for an advisory hearing in a termination of parental rights case brought by the Department of Children and Famili…
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PER CURIAM.
The trial court entered a default against parents of S.M. who were late for a hearing in their termination of parental rights case filed against them by the Florida Department of Children and Families. Because they were mistaken about the public transportation schedule, the parents arrived at the courthouse about one hour after their hearing was to begin. The default had the effect of consenting to the termination of their parental rights. The trial court held a hearing on the parents’ motion to set aside the default, and denied the motion.
This court recently decided two strikingly similar cases. See A.J. v. Dep’t of Children and Families, 845 So. 2d 973 (Fla. 4th DCA 2003); R.P. v. Dep’t of Children and Families, 835 So. 2d 1212 (Fla. 4th DCA 2003).
Significant in the present case, as in R.P., this court discussed section 39.801(3)(d), Florida Statutes, explaining that although the statute authorizes a default at the advisory hearing in termination of parental rights eases,
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.1
835 So. 2d at 1214.
We find the refusal to vacate the default an abuse of discretion.
REVERSED.
STONE, FARMER and HAZOURI, JJ., concur. . Section 39.801(3)(d), Florida Statutes (2001), provides "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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E.A. v. Dep't of Child. & Families, 894 So. 2d 1049 (Fla. 5th DCA 2005)…n a default basis, we conclude that the trial judge abused his discretion in not setting aside or vacating the implied consent of E.A. to the termination. See B.H.; In Re C.D., 867 So. 2d 405 (Fla. 2d DCA 2003); A.M. v. Dep’t of Children & Families, 853 So. 2d 1084 (Fla. 4th DCA 2003); A.J. v. Dep’t of Children & Families, 845 So. 2d 973 (Fla. 4th DCA 2003). Accordingly, we reverse the order terminating E.A.’s parental rights and remand for further proceedings, to include a new adjudicatory hearing. This opin…
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In the Interest of I.A. v. Dep't of Child. & Fam. Servs., 857 So. 2d 310 (Fla. 2d DCA 2003)…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.” Id. at 1214. See A.M. v. Dep’t of Children and Families, 853 So. 2d 1084 (Fla. 4th DCA 2003) (holding that trial court erred in refusing to vacate default judgment against parents who were one hour late to hearing because they were mistaken about the public transportation schedule). In a similar dependency case, A. J. v…
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S.C. v. Dep't of Child. & Families, 877 So. 2d 831 (Fla. 4th DCA 2004)…court has made it clear that constructive consent in termination of parental rights cases should be a disfavored result. See R.P. v. Dep’t of Children & Families, 835 So. 2d 1212, 1214 (Fla. 4th DCA 2003); AM. & Z.M. v. Dep’t of Children & Families, 853 So. 2d 1084 (Fla. 4th DCA 2003)(arriving at a hearing one hour late because the parents were mistaken about the public transportation schedule); A.J. v. Dep’t of Children & Families, 845 So. 2d 973 (Fla. 4th DCA 2003)(where parents arrived 25 minutes late for t…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- R.P. v. Dep't OF Child. & Families, 835 So. 2d 1212 (Fla. 4th DCA 2003)
- A.J. v. Dep't of Child. & Families, 845 So. 2d 973 (Fla. 4th DCA 2003)