K.S., MOTHER OF D.L. AND D.L., CHILDREN, APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, APPELLEE
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Mother appeals the trial court's termination of her parental rights to two children. The appellate court affirmed the termination but struck portions of the order based on grounds not properly alleged in the petition (egregious conduct and failure to comply with case plan as to one child).
The court affirmed the termination of parental rights on the basis that the parent-child relationship threatens the children's life, safety, well-being, or health under section 39.806(l)(c). However, the court struck portions of the order terminating rights based on egregious conduct under section 39.806(l)(f) and failure to comply with a case plan as to Da.L. under section 39.806(l)(e), as these grounds were not properly alleged in the petition.
[1] A trial court errs by terminating parental rights on grounds not alleged in the petition, absent trial by implied consent.
[2] A party may waive the requirement that grounds for termination of parental rights be alleged in the petition by trying the issue by implied consent.
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Establishes the general rule that parental rights termination requires grounds be alleged in the petition
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Join FLexlaw to unlock all legal intelligenceK.S. is the mother of two children, De.L. and Da.L. The Department of Children and Families sought to terminate her parental rights. The trial court t…
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THOMPSON, J.
K.S. (mother) appeals the final order entered by the trial court terminating her parental rights to her children, De.L. and Da.L. We affirm.
The trial court terminated the mother’s parental rights on the basis that the parent-child relationship threatens the life, safety, well-being, or health of the children, on the basis of the mother’s failure to comply with a case plan, and on the basis of the mother’s egregious conduct.1
The mother challenges the court’s ruling, arguing first that the trial court erred in terminating her parental rights based upon subsections (c) or (f) because the petition never alleged these grounds as a basis for termination. K.S. correctly argues that, generally, it is error to terminate parental rights on grounds not alleged in the petition. See R.S. v. Dep’t of Children & Families, 872 So. 2d 412, 413 (Fla. 4th DCA 2004). We agree that the evidence at trial did not address “egregious conduct” under section 39.806(l)(f) or establish the “deplorable, flagrant, or outrageous” conduct contemplated by the section. N.L. v. Dep’t of Children & Family Services, 843 So. 2d 996, 1000 (Fla. 1st DCA 2003). Accordingly, we strike the portions of the termination order that cite to the issue of egregious conduct. See M.D. v. Dep’t of Children & Families, 871 So. 2d 311, 311 (Fla. 5th DCA 2004). Similarly, we strike the portions of the termination order that cite to section 39.806(l)(e) with respect to Da.L. The Guardian Ad Litem properly concedes that it was error to terminate parental rights as to him based on section 39.806(l)(e) because he was never adjudicated dependent.
The mother also argues that the court erred in terminating her parental rights on the basis of section 39.806(l)(c), which was not cited in the petition. However, extensive evidence was introduced during the three-day hearing implicating section 39.806(l)(c), and the attorneys discussed this ground in closing. KS.’s counsel did not object, and the issue was tried by implied consent. Cf. J.K. v. Dep’t of Children, 925 So. 2d 1138, 1140 (Fla. 5th DCA 2006) (reversing where abandonment was not pled, argued, or tried by consent); T.M. v. Dep’t of Children & Families, 905 So. 2d 993, 996 (Fla. 4th DCA 2005). “Our review of the record reveals that sufficient evidence was presented during the termination hearing to support the trial court’s decision that termination was warranted in this case. As such, the court’s ruling is affirmed.” M.D., 871 So. 2d at 311. Accordingly, the trial court’s termination order is affirmed, except those portions finding clear and convincing evidence of egregious conduct, pursuant to section 39.806(l)(f), or failure to comply with a case plan with respect to the younger Da. L., pursuant to section 39.806(l)(e), which are stricken. Id. at 311-12.
AFFIRMED, as modified.
PALMER and LAWSON, JJ., concur. . § 39.806(l)(c), (e) & (0, Fla. Stat. (2001).
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In the Interest of D.J. v. Dep't of Child. & Fam. Servs. & Guardian Ad Litem Program, 9 So. 3d 750 (Fla. 2d DCA 2009)…e Sens., 582 So. 2d 113, 114 (Fla. 3d DCA 1991). Thus, as a general proposition, it is error for the trial court to declare a child dependent based on grounds not alleged in the Department’s petition. See, e.g., K.S. v. Dep’t of Children & Families, 940 So. 2d 577, 578 (Fla. 5th DCA 2006); R.S. v. Dep’t of Children & Families, 872 So. 2d 412, 413 (Fla. 4th DCA 2004). However, when the issue is tried by implied consent, these due process concerns are alleviated. See, e.g., W.R. v. Dep’t of Children & Families,…
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Z.M. v. State, 981 So. 2d 1267 (Fla. 1st DCA 2008)…872 So. 2d at 413) (trial court erred by terminating parental rights based on abandonment where this ground was not pleaded in the petition and DCF did not seek amendment of the petition to include this ground); K.S. v. Dep’t of Children & Families, 940 So. 2d 577, 578 (Fla. 5th DCA 2006) (“[Generally, it is error to terminate parental rights on grounds not alleged in the petition.” (citing R.S., 872 So. 2d at 413)). II. When a petition for termination of parental rights has given adequate notice of statuto…
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Carter v. Hart, 240 So. 3d 863 (Fla. 5th DCA 2018)…through implied consent, when arguments and evidence are presented on the issue at trial without objection by the opposing party (citing W.S. v. Dep't of Child. & Fams. , 961 So. 2d 1131, 1132 (Fla. 4th DCA 2007) ; K.S. v. Dep't of Child. & Fams. , 940 So. 2d 577, 578 (Fla. 5th DCA 2006) ) ). For these reasons, we affirm the order under review in all respects. AFFIRMED. PALMER and WALLIS, JJ., concur. Neither party contests this provision. We also reject, without further discussion, Former Husband's arg…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- N.L. v. Dep't of Child. & Fam. Servs., 843 So. 2d 996 (Fla. 1st DCA 2003)
- R.S. v. Dep't of Child. & Families, 872 So. 2d 412 (Fla. 4th DCA 2004)
- T.M. v. Dep't of Child. & Families, 905 So. 2d 993 (Fla. 4th DCA 2005)
- M.D. v. Dep't of Child. & Families, 871 So. 2d 311 (Fla. 5th DCA 2004)
- T.R. v. Dep't of Child. & Families, 925 So. 2d 1138 (Fla. 5th DCA 2006)