T.B., FATHER OF O.B., A CHILD, APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, APPELLEE
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The court held that a trial court erred by modifying a father's permanency order during his involuntary absence from a hearing.
The father appealed an order modifying permanency entered at a hearing he did not attend due to incarceration. The trial court terminated supervision …
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The father appeals from an order modifying permanency. The order was entered at a hearing in his absence. We reach only one issue and reverse.
The parents consented to a finding of dependency, and the trial court set a case plan for reunification. The parents substantially complied with the case plan, the trial court reunified as to both parents, and set a hearing for six months later as required by section 39.701(1)(b), Florida Statutes (2016). Shortly after reunification, but before the hearing, the father was arrested for burglary and larceny.
At the judicial review hearing, the trial court terminated both supervision and jurisdiction as recommended by the Department of Children and Families (“DCF”) and the Guardian Ad Litem (“GAL”), but also modified permanency as to the father. In so doing, the trial court ordered that the father’s visitation would be at the discretion of the mother. The father’s attorney objected to the order, arguing that the father was incarcerated and had a right to be present. The trial court disagreed and entered the order.
The trial court erred when it modified permanency as to the father during his involuntary absence. This Court has held that “[t]he procedures utilized in a dependency action must comport with due process principles.” A.L. v. Dep't of Child. & Fams., 53 So.3d 324, 328 (Fla. 5th DCA 2010). We believe that the father’s right to due process includes his right to attend the hearing in this case. Importantly, no record evidence in this case indicates that the father was intentionally absent or otherwise waived his right to appear. Rather, his failure to attend the hearing was attributable to his incarceration, which can be remedied by the entry of an order directing that the father be transported to attend the hearing.
REVERSED AND REMANDED.
SAWAYA, LAMBERT and EISNAUGLE, JJ., concur.
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R.E.B. v. DCF (Fla. 5th DCA 2018)…of Child. & Fam. Servs., 768 So. 2d 1060, 1064 (Fla. 2000))). In this case, Appellant had a due process right to be present for the manifest best interest and least restrictive means portion of the proceedings. See T.B. v. Dep’t of Child. & Fams., 222 So. 3d 646, 647 (Fla. 5th DCA 2017). We therefore reverse and remand with instructions for the trial court to conduct a de novo manifest best interest and least restrictive means hearing and to ensure that Appellant and his counsel have an opportunity to atte…
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R.E.B. v. Dep't of Child. & Families, 245 So. 3d 957 (Fla. 5th DCA 2018)
Authorities Cited
- A.L. v. Dep't of Child. & Families, 53 So. 3d 324 (Fla. 5th DCA 2010)