B.S., APPELLANT,
v.
DEPARTMENT OF CHILDREN & FAMILY SERVICES, APPELLEE
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B.S. appeals the termination of her parental rights based on statutory 'consent' arising from her failure to appear in person at the adjudicatory hearing. The court found reversible error because the trial court failed to warn B.S. at the advisory hearing that her failure to personally appear at the adjudicatory hearing would constitute consent to termination.
A trial court reversibly errs by entering a termination of parental rights order based on statutory consent when the trial court fails to expressly warn the parent at the advisory hearing that failure to personally appear at the adjudicatory hearing will constitute consent to termination.
[1] A trial court must expressly warn a parent that failure to personally appear at an adjudicatory hearing for termination of parental rights constitutes consent to terminat…
[2] A parent's failure to personally appear at an adjudicatory hearing for termination of parental rights constitutes consent to termination only if the parent was previously…
Previewing 2 of 3 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 governing constructive consent through failure to personally appear
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAt an advisory hearing on October 18, 2010, the trial court set a termination of parental rights hearing for November 22, 2010, but did not advise B.S…
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CONFESSION OF ERROR
The mother, B.S., appeals from a trial court order terminating her parental rights by “consent,” pursuant to section 39.801 (3)(d) of the Florida Statutes (2010). The statute reads as follows: .
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.
§ 39.801(3)(d), Fla. Stat. (2010) (emphasis added).
At an advisory hearing held on October 18, 2010, the trial court advised B.S. a hearing for the petition for termination of parental rights was set for November 22, 2010. However, the court did not advise B.S. that if she failed to personally appear at the November 22nd hearing, her failure to appear would constitute consent to the termination of parental rights. On the hearing date, B.S. appeared by telephone from Fort Lauderdale. The Department of Children and Family Services moved for a constructive consent for B.S.’s failure to personally appear at the hearing. The trial court granted the petition for termination of parental rights, finding B.S. failed to obey the court’s October 18th order, thereby statutorily consenting to the termination.
Upon proper confession of error by the Department of Children and Family Services, we find the trial court reversibly erred by failing to provide the statutorily required warning to the mother. See § 39.801(3)(d), Fla. Stat.; J.M. v. Dep’t of Children & Families, 9 So.3d 34, 36 (Fla. 4th DCA 2009) (finding the trial court should not have entered a consent to the petition when the trial court' failed to expressly warn the mother of her required presence at the previous hearing). Accordingly, the termination of parental rights order must be reversed for a new adjudicatory hearing.
Reversed and remanded for proceedings in compliance herewith.