Department of Children and Families v. A.S.

• Decision Date: 28 April 2006
• Docket Number: No. 5D05-2906.,5D05-2906.
• Citation: 927 So.2d 204
• Parties: DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. A.S. and W.S., Parents of R.S., a Child, Appellees.
• Court: Florida District Court of Appeals

927 So.2d 204

DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. A.S. and W.S., Parents of R.S., a Child, Appellees.

No. 5D05-2906.

District Court of Appeal of Florida, Fifth District.

April 28, 2006.

Ralph J. McMurphy, of the Department of Children and Families, Wildwood, for Appellant.

Diana K. Simpson, Ocala, for Appellee W.S.

Carol Ann Volini, Ocala, for Appellee A.S.

Patricia M. Propheter, Florida Guardian Ad Litem Program, Orlando.

SAWAYA, J.

In termination of parental rights proceedings, the Department of Children and Families (hereinafter "the Department") may petition for termination on the ground that "the parental rights of the parent to a sibling have been terminated involuntarily." § 39.806(1)(i), Fla. Stat. (2005) (emphasis added). The question here is whether parental rights are "involuntarily" terminated within the meaning of section 39.806(1)(i) when the parents fail to appear for the adjudicatory hearing and the trial court enters the termination order pursuant to section 39.801(3)(d), Florida Statutes (2005), which provides in pertinent part that "failure of [the] parent to personally appear at the adjudicatory hearing shall constitute consent for termination of parental rights." (Emphasis added). We hold that the presumed, implied, or constructive consent that is imposed under section 39.801(3)(d) when a parent fails to personally appear at the adjudicatory hearing does not transform that involuntary proceeding into a voluntary proceeding. Thus, in a subsequent termination proceeding the Department may properly allege section 39.806(1)(i) as grounds for termination.

The facts present a sad story that we see far too often in termination cases—a mother and father unable to properly care for their children because the drugs to which they are addicted severely impair their judgment and ability to exercise basic parenting skills. A.S., the mother, gave birth to three children prior to the birth of R.S., the child that is the subject of the instant termination proceeding. Because A.S.'s first child, B.W., was born when A.S. was only fourteen years old, A.S.'s mother undertook the responsibility of rearing B.W. and eventually moved out of state with this child. Several years later, A.S. married and had her second child, S.H. Although no details were given as to the demise of this family, it appears A.S. and the father of S.H. divorced, and the father was given custody of S.H.

At some point in time, A.S. became heavily involved in the use of cocaine. She also met W.S. and, from this union, A.P. was born. Unfortunately, A.P. tested positive for cocaine at birth and shortly thereafter was sheltered. Dependency proceedings were initiated and A.S. and W.S., who subsequently married, failed to comply with their case plan and their parental rights to A.P. were terminated after they failed to appear at the adjudicatory hearing. The final judgment emanating from the trial court provided that A.S. and W.S. consented to the termination pursuant to section 39.801(3)(d) and set forth detailed factual findings regarding the neglect of A.P. by both A.S. and W.S., as well as their failure to comply with the case plan.¹

Several years later, R.S. was born to A.S. and W.S. As a result of both parents' history of drug abuse, criminal charges, unstable housing, and prior involvement with the Department, the Department immediately removed the child from the parents' care and filed a petition for dependency and termination of parental rights based upon section 39.806(1)(i).²

The trial court adjudicated R.S. dependent, but dismissed the petition to terminate the parents' rights, finding the previous order terminating their rights to A.P. was based on consent and thus could not form a basis for termination under section 39.806(1)(i). Discontent with this ruling, the Department appeals, arguing that the trial court erred as a matter of law in holding that the implied, constructive, or presumed consent imposed pursuant to section 39.801(3)(d) in A.P.'s case necessarily transformed that involuntary termination proceeding into a voluntary proceeding, thereby requiring dismissal of the Department's petition in the case concerning R.S.

"An order dismissing a petition for termination of parental rights is a mixed question of law and fact which will be sustained on review if the court applied the correct law, and its ruling is supported by competent substantial evidence in the record." Dep't of Children & Families v. K.P., 858 So.2d 1137, 1137 (Fla. 5th DCA 2003) (citing In re M.F., 770 So.2d 1189 (Fla.2000)). Here, competent substantial evidence supports the finding that A.S. and W.S. both failed to appear at the adjudicatory hearing regarding the termination of their parental rights as to A.P., and neither parent contends otherwise. Hence we must resolve a legal issue that requires us to analyze the interplay between sections 39.801(3)(d) and 39.806(1)(i) to determine whether consent under the former statute renders the proceedings voluntary, thereby precluding termination under the latter.

A.S. and W.S. advert to definitions of the terms "consent," "voluntary," and "involuntary" and rely heavily on perceived similarities between the first two and the opposite meaning of the latter. Reducing their arguments to their essence, "consent" means voluntary and is, therefore, the antithesis of "involuntary." Carrying this argument to its logical conclusion, they contend that consent under section 39.801(3)(d) transforms an otherwise involuntary proceeding into a voluntary proceeding. But we do not believe that a thorough analysis of the issue before us begins and ends with consideration of definitions of these terms extracted from randomly chosen dictionaries, although we certainly recognize that such definitions can be helpful in many instances. See Rollins v. Pizzarelli, 761 So.2d 294 (Fla. 2000). Rather, we must search for the intended meaning of the pertinent statutory provisions and, in order to accomplish this task, we must consider the statutory provisions in pari materia and construe them in harmony with one another. Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452 (Fla.1992); G.E.L. Corp. v. Dep't of Envtl. Prot., 875 So.2d 1257 (Fla. 5th DCA 2004).

Our analysis begins with the provisions of section 39.806(1), Florida Statutes (2005), which establish the grounds for termination of parental rights. Specifically, it provides that "[t]he department, the guardian ad litem, or any person who has knowledge of the facts alleged or who is informed of those facts and believes that they are true may petition for the termination of parental rights under any of the following circumstances. . . ." § 39.806(1), Fla. Stat. (2005) (emphasis added). Nine grounds are specifically listed and because any one of them may be sufficient for termination, each is separate and distinct. See § 39.806(1)(a)-(i), Fla. Stat. (2005). Of these nine separate and distinct grounds, voluntary terminations are specifically provided for under section 39.806(1)(a); the remaining eight grounds, including terminations under section 39.806(1)(i), are involuntary. Hence, the Legislature certainly knows the difference between voluntary and involuntary termination and has provided specific provisions for each.

Conspicuously absent from the provisions of section 39.806(1) as a ground for voluntary termination is consent under section 39.801(3)(d), and for good reason: the Legislature never intended for consent under section 39.801(3)(d) to be a ground for termination. Rather, section 39.801(3)(d) and its implementing rule, found in Florida Rule of Juvenile Procedure 8.525, are "intended to ensure that the object of the termination petition is not defeated by the neglect of the proceeding by the parent." E.A. v. Dep't of Children & Families, 894 So.2d 1049, 1051 (Fla. 5th DCA 2005). We believe that if the Legislature intended for consent under 39.801(3)(d) to transform an involuntary proceeding into a voluntary proceeding, it surely would have said so. It did not.

Further analysis reveals that voluntary termination under section 39.806(1)(a) requires consent by the parents that is altogether different from consent under section 39.801(3)(d). Specifically, consent under section 39.801(3)(d) is implied, presumed, or constructive consent that derives from the parent's failure to appear. See In re A.N.D., 883 So.2d 910, 913 n. 2 (Fla. 2d DCA 2004) ("[T]he statutes and rules refer to a parent's `consent.' Because this consent occurs through implication, it may be referred to as `presumed consent,' `implied consent,' or `constructive consent.'"); S.C. v. Dep't of Children & Families, 877 So.2d 831, 832 (Fla. 4th DCA 2004) ("Further, section 39.801(3)(d), Florida Statutes, and Florida Rule of Juvenile Procedure 8.510(a)(3), provide statutory and procedural authority for the court to accept a parent's failure to appear at an advisory hearing as constructive consent to termination of parental rights by default."). A voluntary termination proceeding, on the other hand, leaves nothing to presume, imply, or establish constructively because the voluntary surrender must be clear, expressed, unequivocal, and emanate directly from the parent. See T.C.B. v. Florida Dep't of Children & Families, 816 So.2d 194, 196-97 (Fla. 1st DCA 2002) ("We interpret the legislative intent behind section 39.806(1)(...