N.L., THE FATHER, APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, APPELLEE
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This case involves a father appealing the denial of his motion to vacate a final judgment terminating his parental rights. The father failed to appear at the original termination hearing and later at the hearing on his motion to vacate, and his request to testify telephonically was denied.
The appellate court held that the trial court correctly denied the father's request to testify telephonically because Florida Rule of Judicial Administration 2.530(d) requires consent from both parties, which the Department of Children and Families did not provide. The court also found that the father's constitutional challenge to the rule was not preserved for appeal.
[1] A party's constitutional challenge to a rule of judicial administration, raised as an as-applied challenge, must be raised in the trial court to be preserved for appeal.
[2] Testimony by telephone in a judicial proceeding is not permitted unless all parties consent.
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Join FLexlaw to unlock all legal intelligence“The trial court denied his request to testify telephonically when the Department of Children and Families objected. In so ruling, the trial court was correct, as Florida Rule of Judicial Administration 2.530(d) does not allow testimony by telephone unless both parties consent.”
Establishes the trial court's correct ruling based on the rule of judicial administration.
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Join FLexlaw to unlock all legal intelligenceThe father's parental rights were terminated based on his constructive consent due to failure to appear at the adjudicatory hearing. He later filed a …
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The father appeals the denial of his motion to vacate the final judgment terminating his parental rights to his child. The final judgment was entered based upon the father’s constructive consent due to his failure to appear at the adjudicatory hearing on the petition to terminate rights. Although notified of the necessity of his personal appearance at the hearing on the motion to vacate, the father failed to appear again. The trial court denied his request to testify telephonically when the Department of Children and Families objected. In so ruling, the trial court was correct, as Florida Rule of Judicial Administration 2.530(d) does not allow testimony by telephone unless both parties consent. See M.S. v. Dep’t of Children & Families, 6 So.3d 102, 104-05 (Fla. 4th DCA 2009). The father’s constitutional challenge to the rule, which is an as-applied challenge, was not raised in the trial court. Therefore, it is not preserved for appeal. Fla. Dep’t of Fin. Servs, v. Freeman, 921 So.2d 598, 602 (Fla.2006). The father’s claim that the trial court relied on the Department’s proffer of testimony, instead of sworn testimony, in denying his motion is not supported by the record. The trial court denied the motion because the father did not appear at the hearing, as ordered by the trial court at calendar call, not based upon the proffer by the Department. Without testimony from the father regarding his claims in the motion to vacate, there was no evidence to support his request.1
Affirmed.
WARNER, HAZOURI and CIKLIN, JJ., concur.
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Citator
Authorities Cited
- Fla. Dep't of Fin. Servs. v. Freeman, 921 So. 2d 598 (Fla. 2006)
- M.S. v. Dep't of Child. & Families, 6 So. 3d 102 (Fla. 4th DCA 2009)