V.D.C., MOTHER OF D.B., A MINOR, APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES, APPELLEE

Fla. 1st DCA | 2005-04-15
No. 1D04-3842
WEBSTER and POLSTON, JJ., concur.
899 So. 2d 1193 Florida District Court of Appeal, First District (2005) Positive Treatment
Cited by 7 cases

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Synopsis

The Florida appellate court reversed a termination of parental rights order, holding that a trial court lacks statutory authority to terminate parental rights based solely on a parent's failure to appear at a pretrial hearing (docket sounding/scheduling conference). The court emphasized that termination of parental rights requires strict adherence to statutory procedures, which authorize defaults only for failure to appear at properly noticed advisory or adjudicatory hearings.


Holding

A trial court lacks statutory authority to terminate parental rights based on a parent's failure to appear at a pretrial hearing. Section 39.801(3)(d), Florida Statutes, permits entry of a default (treating failure to appear as consent) only when a parent fails to appear at a properly noticed advisory hearing or adjudicatory hearing where the parent has been specifically ordered to appear. Termination of parental rights based on failure to appear at other pretrial proceedings violates due process and statutory requirements.


Headnotes

[1] Termination of parental rights requires strict adherence to statutory requirements.

[2] A parent's failure to appear at a pretrial hearing, other than a properly noticed advisory or adjudicatory hearing, does not constitute consent for termination of parenta…

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Key Quotes

“[S]tate intervention to terminate parental rights must be accomplished by procedures meeting the requisites of due process.”

Establishes the due process foundation for requiring strict statutory compliance in termination proceedings

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Facts & Procedural History

V.D.C. was the mother of minor child D.B. in a dependency proceeding. V.D.C. received notice and appeared personally at an advisory hearing, where she…

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Opinion of the Court
BENTON, J.

BENTON, J.

Simply because V.D.C. failed to attend a pretrial hearing-even though counsel did appear at the pretrial hearing in question on V.D.C.’s behalf, and even though V.D.C. had appeared personally at an earlier, advisory hearing — the trial court terminated her parental rights to her child, D.B. We reverse.

“[S]tate intervention to terminate parental rights must be accomplished by procedures meeting the requisites of due process.” J.B. v. Fla. Dep’t of Child. & Fam. Servs., 768 So. 2d 1060, 1064 (Fla.2000). In proceedings to terminate parental rights, where a parent receives adequate notice of the necessity to attend either an advisory hearing or an adjudicatory hearing, section 39.801(3)(d), Florida Statutes (2004), 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. 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.

But section 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.

Section 39.801(3)(d), Florida Statutes (2000), provides the trial court with authority to enter a default against a parent who fails to appear at either an advisory or adjudicatory hearing; however, the statute does not address the failure to appear at [any other pretrial hearing,] a “docket sounding” or scheduling conference. This court has previously reversed orders terminating parental rights which were entered based on defaults that were not specifically authorized by statute. See In the Interest of B.A., 745 So. 2d 962 (Fla. 2d DCA 1999); In the Interest of A.L., 711 So. 2d 600 (Fla. 2d DCA 1998).

In re C.R., 806 So. 2d 646, 646 (Fla. 2d DCA 2002). “The profound nature of an order terminating parental rights mandates strict adherence to statutory requirements.” C.R.K. v. Dep’t of Child. & Fams., 826 So. 2d 1053, 1054-55 (Fla. 4th DCA 2002) (reversing termination of parental rights based on failure to appear at a calendar call); see also In re C.R., 806 So. 2d at 646 (reversing order which terminated mother’s parental rights for failure to appear at a scheduling conference).

In the final order under review, terminating V.D.C.’s parental rights to her minor child, D.B., without an adjudicatory hearing, the trial court accurately recounted the fact of V.D.C.’s appearance at the advisory hearing:

The mother, [V.D.C.], was properly noticed and served for the TPR advisory hearing. She appeared, was appointed counsel and entered a denial to the petition. At the dose of the advisory hearing, the court set a pre-trial hearing on the TPR petition and ordered the mother to appear at the pretrial court date or a consent would be entered. The mother did not appear at the pretrial hearing and the Court entered a Consent by Default upon the mother. (Emphasis supplied.) The transcript of the advisory hearing does not, however, reflect that the learned trial judge either ordered appellant to appear at the pretrial hearing, or ordered that “a consent would be entered” if V.D.C. failed to appear. At the pretrial hearing, V.D.C.’s counsel objected to any entry of “Consent by Default upon the mother.” Because, as the Department of Children and Family Services concedes, the trial court erred in terminating VD.C.’s parental rights to D.B., based on V.D.C.’s not having appeared personally at the pretrial hearing, the order on review is reversed.

Reversed.

WEBSTER and POLSTON, JJ., concur.


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Citator

Cited By

  • Tedesco v. Dep't OF Revenue, 93 So. 3d 1236 (Fla. 2d DCA 2012)
    …tions and sent a notice of hearing to the parties, but Tedes-co failed to appear at the scheduled hearing. Normally, this failure to appear would be considered a waiver of Tedeseo’s right to be heard. Cf. V.D.C. v. Dep’t of Children & Family Servs., 899 So. 2d 1193, 1194-95 (Fla. 1st DCA 2005) (noting that a parent’s failure to appear at a properly noticed adjudicatory hearing constitutes a waiver of the right to be heard and a consent to entry of judgment against that parent); Giordano v. Dep’t of Banking & F…
  • D.V. v. Dep't of Child. & Families, 186 So. 3d 1101 (Fla. 4th DCA 2016)
    …ngs. § 39.013(9)(a)-(b), Pla. Stat. (emphasis added); see Fla. R. Juv. P. 8.320(a). “ ‘The profound nature of an order terminating parental rights mandates strict adherence .to statutory requirements.’” V.D.C. v. Dep’t of Children & Family Servs., 899 So. 2d 1193, 1194 (Fla. 1st DCA 2005) (quoting C.R.K. v. Dep’t of Children & Families, 826 So. 2d 1053, 1054-55 (Fla. 4th DCA 2002)). And, “state intervention to terminate parental rights must be accomplished by procedures meeting the requisites of due process.…
  • R.A. v. Dep't of Child. & Families, 83 So. 3d 841 (Fla. 5th DCA 2011)
    …ep’t of Children & Families, 921 So. 2d 737, 739 (Fla. 5th DCA 2006). However, the only two types of TPR proceedings during which a parent can be defaulted are advisory hearings and adjudicatory hearings. V.D.C. v. Dep’t of Children & Family Servs., 899 So. 2d 1193, 1194 (Fla. 1st DCA 2005); see In re C.R., 806 So. 2d 646 (Fla. 2d DCA 2002) (holding trial court erred in defaulting parent for failing to appear at scheduling conference); C.R.K. v. Dep’t of Children & Families, 826 So. 2d 1053 (Fla. 4th DCA 2002)…

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