IN THE INTEREST OF S.C., A CHILD. P.C., APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES, APPELLEE
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A Florida appellate court affirmed a trial court's termination of parental rights where the mother failed to appear at the adjudicatory hearing. The court clarified that while a trial court may treat a parent's nonappearance as consent to termination under statute, the procedural method of entering a "default" is technically improper; instead, the court should enter a final judgment based on the parent's implied consent.
The termination of parental rights was properly affirmed because the mother's absence from the adjudicatory hearing constituted consent to the termination petition under Florida Statute Section 39.801(3)(d). While the trial court's use of "default" terminology was technically improper, any error was harmless because the statute contemplates that the court may consider the parent's absence as consent and enter final judgment accordingly.
[1] A parent's failure to personally appear at an adjudicatory hearing for termination of parental rights, after being ordered to do so by the court, constitutes consent for…
[2] The clerk of court cannot enter a default against a parent for failure to appear at an adjudicatory hearing in a termination of parental rights case.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“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.”
The statutory provision that establishes the legal consequence of a parent's nonappearance at a termination hearing.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceP.C., the mother of S.C., was ordered by the circuit court to personally appear at an adjudicatory hearing for a petition to terminate her parental ri…
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DAVIS, Judge.
P.C., the mother, challenges the circuit court order terminating her parental rights to her son, S.C. The mother also appeals the circuit court’s denial of her motion to set aside the default. We affirm both orders without comment. We write, however, to clarify the statutorily prescribed result of a parent’s failure to appear at an adjudicatory hearing for termination of parental rights.
Section 39.801(3)(d), Florida Statutes (2002), provides in part:
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.
(Emphasis added.) See also Fla. R. Juv. P. 8.525(d).
When the mother failed to appear for the adjudicatory hearing, the trial court used what appears to be a default proceeding whereby, upon motion by counsel for the Department of Children and Family Services, the clerk signed and entered a “default.” This type of procedure usually is reserved for civil proceedings where a party fails to file a required pleading. See Fla. R. Civ. P. 1.500.
While interchanging the words “consent” and “default” may be acceptable,1 nothing in the statute or rule allows the clerk of court to sign or enter a default against a parent who fails to appear. Rather, the statute contemplates that the court may consider the mother’s absence to be her consent to the petition and enter the final judgment accordingly.
Because the termination of the mother’s parental rights here was based on the court’s finding that the mother, by her absence, had consented to the allegations of the petition, as allowed by the statute, any error is harmless.
Affirmed.
FULMER and KELLY, JJ., concur. . Although in In re C.R., 806 So. 2d 646 (Fla. 2d DCA 2002), this court recognized the trial court’s authority to enter a default against a parent for nonappearance at an adjudicatory hearing in a termination proceeding, pursuant to a strict reading of the statutory language, “consent” is the preferred term. See also Fla. R. Juv. P. Forms 8.965 and 8.966 (providing that a parent’s failure to appear at an arraignment or an adjudicatory hearing on a petition for dependency may result in "consent by default”).
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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)…. v. Dep’t of Children & Family Servs. (In re B.B.), 858 So. 2d 1184, 1186 (Fla. 2d DCA 2003); G.A. v. Dep’t of Children & Family Servs: (In re I.A.), 857 So. 2d 310, 311-12 (Fla. 2d DCA 2003); P.C. v. Dep’t of Children & Family Servs. (In re S.C.), 857 So. 2d 217, 218 (Fla. 2d DCA 2003). Rather, the statutes and rules refer to a parent’s "consent.” Because this consent occurs through implication, it may be referred to as "presumed consent,” "implied consent,” or "constructive consent.” . We caution that the…
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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)…a dependency adjudication.” Pursuant to the statute, the court is authorized to find that a parent consented to the adjudication of dependency after he or she failed to appear at arraignment after proper notice. [*312] In re S.C., 2003 WL 21766512, 857 So. 2d 217 (Fla. 2d DCA 2003) (holding that nothing in the statute allows the entry of a default against a parent who fails to appear and that “consent” is the preferable term). In the present case, we conclude that the trial court abused its discretion in fi…
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- In the Interest of C.R. v. Dep't of Child. & Fam. Servs., 806 So. 2d 646 (Fla. 2d DCA 2002)