EA v. Department of Children and Families

• Decision Date: 28 January 2005
• Docket Number: No. 5D04-1904.,5D04-1904.
• Citation: 894 So.2d 1049
• Parties: E.A., Father of B.S. and B.S., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
• Court: Florida District Court of Appeals

894 So.2d 1049

E.A., Father of B.S. and B.S., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.

No. 5D04-1904.

District Court of Appeal of Florida, Fifth District.

January 28, 2005.

Rehearing Denied March 2, 2005.

Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.

Charles D. Peters, Orlando, for Appellee.

MONACO, J.

The appellant, E.A., seeks review of a judgment terminating his parental rights to his children, B.S. and B.S. The judgment was based upon E.A.'s implied consent to the termination, resulting from his late arrival at an adjudicatory hearing. See § 39.801(3)(d), Fla. Stat. (2004). Because we conclude that under the circumstances the trial judge abused his discretion in not setting aside his finding of implied consent, we reverse.

The minors, whose natural mother is deceased, were determined to be dependent with respect to E.A., and placed temporarily with their maternal grandparents. After the Department of Children and Family Services filed a petition to terminate his parental rights, E.A. appeared, as required, at an advisory hearing scheduled by the trial court, at which time he was ordered to appear at the scheduled adjudicatory hearing. E.A. was advised by the court of the date, time and location that the adjudicatory hearing would be held. When the adjudicatory hearing began, E.A. was not present. At the request of the Department, the trial court entered a "default" against E.A. More precisely, the trial court considered E.A.'s failure to be present as an implied or constructive consent to the termination of parental rights, pursuant to section 39.801(3)(d), Florida Statutes (2004), which reads:

(d) 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.

See also Fla. R. Juv. P. 8.525(d).

About 22 minutes after the testimony began, E.A. entered the courtroom, and explained that while traveling along Interstate 4 from Polk County to Osceola County, the location of the hearing, he became ensnarled in a traffic jam resulting from an automobile accident. He said, in addition, that he had called the court, but as no one answered, he left a message explaining his predicament on the court answering machine. The trial court advised E.A. that because he was not present when the hearing started, he had been defaulted, and would not be allowed to participate.

The Department called the remainder of its witnesses, and while E.A., through his counsel, was allowed to cross-examine those witnesses, he was not permitted to testify or to call witnesses on his own behalf. At the conclusion of the testimony E.A.'s attorney moved to set aside the "default," and requested an opportunity for E.A. to testify. The trial court denied the motions based on E.A.'s absence at the commencement of the hearing, and then found by clear and convincing evidence that E.A.'s parental rights should be terminated.

E.A. next filed objections to the Department's proposed termination order, and a hearing was held to consider them. A debate ensued regarding how late E.A. was for the adjudicatory hearing. E.A. suggested he was actually only ten minutes late, but as the courtroom doors were locked because of the nature of the proceeding, he was unable to enter for another ten or twelve minutes. The trial court took judicial notice that Interstate 4 backs up between Polk County and the City of Kissimmee, but suggested that E.A. should have been aware of the regular congestion, and should have scheduled sufficient time to be present at the commencement of the hearing.¹ The trial court then overruled the objections, and entered the termination order. E.A. timely appealed.

Unquestionably, under section 39.801(3)(d), Florida Statutes (2004), and Rule 8.525(d), Florida Rules of Juvenile Procedure, a court may order a parent appearing at an advisory hearing to appear personally at the adjudicatory hearing at a specified date, time, and location. Should the parent fail to appear at the appointed time and place, the statute and the rule give the court the authority to consider the absence of the parent to be a consent for termination of parental rights. See B.H. v. Dep't of Children & Families, 882 So.2d 1099, 1100 (Fla. 4th DCA 2004)

. The purpose of this rule, however, is not to terminate parental rights on a "gotcha" basis. See id. The relationship between parents and their children is far too precious to be severed simply because of tardiness in attending a hearing. Rather, the statute and rule are intended to ensure that the object of the termination petition is not defeated by the neglect of the proceeding by the parent. See J.B. v. Fla. Dep't of Children & Family Servs., 768 So.2d 1060, 1067 (Fla.2000); In re A.N.D., 883 So.2d 910, 913 (Fla. 2d DCA 2004). Accordingly, constructive or implied consent based on late arrival to a hearing in termination of parental rights cases is a disfavored result.

See S.C. v. Dep't of Children & Families, 877 So.2d 831, 833 (Fla. 4th DCA 2004); R.P. v. Dep't of Children & Families, 835 So.2d 1212, 1214 (Fla. 4th DCA 2003).

The reason is obvious. A natural parent has a "fundamental liberty interest" in his or her offspring that is protected under the due process umbrella. See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)

; In the Interest of R.W., 495 So.2d 133, 134 (Fla.1986); Lewis v. Dep't of Health & Rehabilitative Servs., 670 So.2d 1191 (Fla. 5th DCA 1996). As a result, "Florida has established a strong public policy in favor of protecting the relationship between natural parents and their children." See In the Interest of E.H., 609 So.2d 1289, 1290 (Fla.1992) (citing Burk v. Dep't of Health & Rehabilitative Servs., 476 So.2d 1275 (Fla.1985)). "So important is the parent-child relationship...