IN THE INTEREST OF H.S. AND S.S., MINOR CHILDREN, L.S., APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES AND GUARDIAN AD LITEM PROGRAM, APPELLEES
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A Florida appellate court reversed the termination of a mother's parental rights, holding that the trial court abused its discretion by refusing to allow her to appear telephonically to explain her absence from an adjudicatory hearing. The court found that where a parent makes reasonable efforts to be present but is prevented by circumstances beyond their control, courts should ordinarily allow alternative appearance methods rather than enter a default termination.
Yes. The court reversed, holding that courts should ordinarily refrain from terminating parental rights by default where an absent parent is making reasonable efforts to be present and is delayed by circumstances beyond their control. The trial court abused its discretion by refusing the mother's reasonable request to appear by telephone, especially where the GAL's claim of a pattern of nonappearance was disputed by counsel and unsupported by the record.
[1] A trial court abuses its discretion by refusing to allow a parent to appear telephonically to explain their absence from an adjudicatory hearing, especially when the pare…
[2] A parent's failure to personally appear at an adjudicatory hearing may constitute consent to termination of parental rights only if the parent was instructed in person at…
Previewing 2 of 5 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“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 that courts must follow when a parent is absent but making reasonable efforts to appear.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceL.S., the mother of minor children H.S. and S.S., was out of state at the scheduled adjudicatory hearing in a dependency termination case due to finan…
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KELLY, Judge.
L.S., the mother, appeals from a final judgment terminating her parental rights to her children, H.S. and S.S. The mother argues that the trial court abused its discretion in refusing to allow her to appear by telephone to explain her absence from the adjudicatory hearing and in deeming her nonappearance a consent to the termination of her parental rights. We agree and reverse.
The record reflects that the mother’s counsel appeared at the scheduled adjudicatory hearing and informed the court that the mother was out of state and unable to personally appear at the hearing because of financial difficulties. Counsel advised the court that the mother was available to appear by telephone and requested that she be given the opportunity to explain the reasons she was unable to appear in person. The Department of Children and Family Services (the Department) objected on the ground that the mother was properly noticed and had sufficient time to arrange her travel plans. The Guardian ad Litem (GAL) objected, stating, “there’s a history here of the mother not showing, and I think this is just indicative of a pattern.” Based upon these objections, the trial court refused to allow the mother to appear telephonically, found that her nonappearance was “getting to be a pattern,” and terminated her parental rights due to her absence.
A parent’s failure to personally appear at the adjudicatory hearing constitutes a consent for termination of parental rights if the parent has been instructed in person at the advisory hearing to appear. § 39.801(3)(d), Fla. Stat. (2005). However, “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.” R.P. v. Dep’t of Children & Families, 835 So. 2d 1212, 1214 (Fla. 4th DCA 2003); see also V.M. v. Dep’t of Children & Family Servs., 941 So. 2d 1255, 1256 (Fla. 2d DCA 2006) (citing R.P.); B.H. v. Dep’t of Children & Families, 882 So. 2d 1099, 1100-01 (Fla. 4th DCA 2004) (“courts have made a distinction between parents who fail to appear at a hearing without a reasonable explanation versus those who have made some reasonable effort to be present.”).
Here, the statement by the GAL that the mother had a history of failing to appear was disputed at the hearing by the mother’s counsel and is not supported by the record. Under these circumstances, the trial court should have allowed the mother the opportunity to appear by telephone to explain the reasons for her nonappearance instead of entering a default. See T.L.D. v. Dep’t of Children & Family Servs., 883 So. 2d 910, 915 (Fla. 2d DCA 2004) (holding that public policy favors an adjudication on the merits over the entry of a default in cases dealing with the rights of a parent to the care, custody, and control of a child). Accordingly, we reverse the final judgment terminating the mother’s parental rights and remand for further proceedings.
Reversed and remanded.
DAVIS and CANADY, JJ„ Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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F.M. v. State of Fla. Dep't OF Child. & Families, 95 So. 3d 378 (Fla. 3d DCA 2012)…ear in person for the hearing. The failure to make further inquiry or seek further explanation, and thereafter make a determination of the reasonableness of that explanation, was an abuse of discretion. B.H., 882 So. 2d at 1102. See also In re H.S., 995 So. 2d 516 (Fla. 2d DCA 2008) (reversing TPR where court refused to allow mother to appear telephonically to explain the reasons for her nonappearance); In re C.M., 941 So. 2d 1255 (Fla. 2d DCA 2006) (reversing TPR where father was delayed in trav-elling to th…
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C.L. v. Fla. Dep't of Child. & Families, 66 So. 3d 411 (Fla. 1st DCA 2011)…ed a consent to termination, he had informed the court prior to the hearing that he could not attend on the scheduled date because he was working in Louisiana and could neither miss work nor afford to make the trip until he was paid. See In re H.S., 995 So. 2d 516, 516 (Fla. 2d DCA 2008) (deeming financial hardship of a parent a circumstance beyond the parent’s control); In re A.N.D., 883 So. 2d 910, 914 (Fla. 2d DCA 2004) (explaining that courts should avoid terminating a parent’s rights if the parent is mak…
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A. D. v. Dept. of Child. & Families, 269 So. 3d 642 (Fla. 2d DCA 2019)
Authorities Cited
- R.P. v. Dep't OF Child. & Families, 835 So. 2d 1212 (Fla. 4th DCA 2003)
- In the Interest of A.N.D. v. Dep't of Child. & Fam. Servs., 883 So. 2d 910 (Fla. 2d DCA 2004)
- B.H., SR. v. Dep't of Child. & Families, 882 So. 2d 1099 (Fla. 4th DCA 2004)
- In the Interest of C.M. and E.M. v. Dep't of Child. & Fam. Servs. & Guardian Ad Litem Program, 941 So. 2d 1255 (Fla. 2d DCA 2006)