M.D.-P, THE MOTHER
v.
DEPARTMENT OF CHILDREN AND FAMILIES
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A constructive consent to termination of parental rights under Florida Statute § 39.801(3)(d) may be set aside under the three-part test requiring the party to demonstrate due diligence, excusable neglect, and the existence of a meritorious defense.
[1] A constructive consent to termination of parental rights arising from a parent's failure to appear at an adjudicatory hearing pursuant to Florida Statute § 39.801(3)(d) m…
Previewing 1 of 1 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“As with other defaults, a constructive consent to termination entered pursuant to section 39.801(3)(d) may be set aside under the usual three part test. Under that test, the party seeking to vacate the default [must] act with due diligence, demonstrate excusable neglect, and demonstrate the existence of a meritorious defense to the termination petition.”
Court citation to Fla. Dep't of Child. & Fam. Servs. v. P.E., establishing the framework for setting aside default in termination cases
The mother failed to appear at a scheduled Zoom adjudicatory hearing for termination of parental rights, and the trial court entered a default against…
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Third District Court of Appeal
State of Florida
Opinion filed August 30, 2023. Not final until disposition of timely filed motion for rehearing.
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No. 3D23-574 Lower Tribunal No. 18-15057
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M.D.-P., the mother,
Appellant,
vs.
Department of Children and Families, et al., Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Denise Martinez-Scanziani, Judge. Stok Kon + Braverman, and Yosef Kudan and Robert A. Stok (Fort Lauderdale), for appellant. Karla Perkins, for appellee Department of Children & Families; and Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Laura J. Lee, Assistant Director of Appeals (Tallahassee), for appellee Guardian ad Litem. Before SCALES, HENDON, and GORDO, JJ. HENDON, J.
M.D.-P., the Mother (“Mother”), appeals from a final judgment of termination of parental rights. We reverse and remand for further proceedings.1 The Mother failed to appear at the scheduled Zoom adjudicatory hearing for the petition for termination of parental rights. The Mother’s defense counsel informed the trial court that they had been in communication with the Mother several times during the week and weekend to prepare for the hearing, and they last heard from her at 7:31 a.m. that morning. The trial court then stated that it was surprised that the Mother did not appear because she had been at every hearing. As requested by the Department of Children and Families, the trial court entered a default against the Mother. See § 39.801(3)(d), Fla. Stat. (2022) (“If a parent appears for the advisory hearing and the court orders that parent to appear at the adjudicatory hearing for the petition for termination of parental rights, stating the date, time, and location of the hearing and, if applicable, instructions for appearance through audio-video communication technology, then failure of that parent to appear, either physically or, by agreement of the parties or at the discretion of the court, through audio-