Florida Dcfs v. P.E.
| Decision Date | 16 July 2009 |
| Docket Number | No. SC09-169.,SC09-169. |
| Citation | 14 So.3d 228 |
| Parties | FLORIDA DEPARTMENT OF CHILDREN AND FAMILY SERVICES, et al., Petitioners, v. P.E., Respondent. |
| Court | Florida Supreme Court |
Bill McCollum, Attorney General, Tallahassee, FL, Kelley Schaeffer, Assistant Attorney General, Tampa, FL and Jeffrey Dana Gillen, Statewide Appeals Director, Department of Children and Families' Children's Legal Services, West Palm Beach, FL; and M. Linville Atkins, General Counsel, Mercedes E. Scopetta, Regional Counsel, and Annette Lizardo, Appellate Counsel, Statewide Guardian Ad Litem, Orlando, FL, for Petitioners.
Lorena L. Kiely, Plant City, FL, for Respondent.
We have for review the decision in In re H.E., 3 So.3d 341 (Fla. 2d DCA 2009), review granted sub nom. Florida Department of Children & Family Services v. P.E., 4 So.3d 676 (Fla.2009), in which the Second District Court of Appeal addressed a question of statutory construction regarding a parent's implied consent to termination of parental rights under section 39.801(3)(d), Florida Statutes (2007). The statute provides for entry of such consent upon a parent's "failure to personally appear at the adjudicatory hearing." § 39.801(3)(d). The Second District held that when the trial court enters a parent's consent to termination under the statute, the Department of Children and Family Services (Department) is not required to present evidence to support any of the statutory grounds for termination alleged in the petition.
On that point, the Second District certified conflict with the Third District Court of Appeal's opinions in S.S. v. State Department of Children & Family Services, 976 So.2d 41 (Fla. 3d DCA 2008), and R.H. v. Department of Children & Family Services, 860 So.2d 986 (Fla. 3d DCA 2003), and the Fifth District Court of Appeal's opinion in Department of Children & Families v. A.S., 927 So.2d 204 (Fla. 5th DCA 2006). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. As explained below, we agree with the Second District's resolution of the conflict issue, but we disapprove of a portion of its reasoning. Accordingly, we quash its decision in part and disapprove of the Third and Fifth Districts' holdings on the conflict issue.
In early August 2005, the six-month-old child H.E. was removed from P.E., the mother, and placed in shelter care by the Department. The child was later adjudicated dependent, and in July 2007 the Department filed a petition for termination of parental rights, alleging the following statutory grounds: abandonment; continued involvement of the parent threatens the child irrespective of services; continued abuse; abandonment or neglect after filing a case plan; and material breach of the case plan. See § 39.806(1), Fla. Stat. (2007).1
The mother appeared at the advisory hearing held on July 5, 2007. The trial court expressly informed her of the date, time, and location of the adjudicatory hearing and told her that her presence was necessary and that she could lose her parental rights if she failed to appear at the adjudicatory hearing. The court also appointed counsel for the mother and instructed P.E. to call her attorney that day. Before she left the hearing, the mother signed a "Notice to Appear" that contained the dates, times, and locations of both the pretrial conference and the adjudicatory hearing and which contained the following warning:
FAILURE TO PERSONALLY APPEAR FOR A SCHEDULED TERMINATION OF PARENTAL RIGHTS ADJUDICATORY HEARING, [sic] CONSTITUTES CONSENT TO THE TERMINATION OF PARENTAL RIGHTS OF YOUR CHILD(REN). IF YOU FAIL TO APPEAR ON THE DATE AND TIME SPECIFIED, YOU MAY LOSE ALL LEGAL RIGHTS AS A PARENT TO THE CHILD OR CHILDREN NAMED IN THE PETITION ATTACHED TO THIS NOTICE.
On July 30, the court issued an order after the pretrial conference with counsel for the parties, which again provided the information regarding the date, time, and location of the adjudicatory hearing. Copies of the order were sent to the parties, including the mother and her counsel.
The trial court convened the adjudicatory hearing on August 20, 2007, and upon report that P.E. was not present, sent the bailiff to sound the halls for her. The mother's counsel was present but offered no information regarding P.E.'s whereabouts. Finally, the trial court found that the mother had been given the required notice and that her failure to appear constituted consent to the allegations in the petition for termination of parental rights under section 39.801(3)(d).2 Because the guardian ad litem was unexpectedly unavailable to testify, the court set a permanency hearing for September 25.
Eighteen days later, on September 7, the mother through counsel filed a "Motion for Rehearing" seeking to vacate the consent entered by the trial court when she failed to appear at the adjudicatory hearing. Without factual elaboration, the mother alleged that her failure to appear was "not willful" and resulted from a "misunderstanding." At the hearing on the mother's motion held on September 21, the mother testified, admitting that at the advisory hearing she signed the notice to appear. However, she testified that although she could have, she did not read the information about the adjudicatory hearing in the notice. She claimed that she appeared at court on the wrong day based on incorrect information from the child's father and that she then called her attorney only to discover the adjudicatory hearing was previously held. The case manager testified that after the July 5 advisory hearing she told the mother of the importance of attending the adjudicatory hearing and the consequence of nonattendance. She also stated that the mother had the written documents containing the pertinent hearing information.
The trial judge reviewed the transcript from the adjudicatory hearing and found that she had specifically informed the mother of the hearing dates and the consequences for failing to appear and that the mother also received written notice. Further, the trial court found the mother's testimony was not credible. Accordingly, the court denied the mother's motion.
At the subsequent hearing on September 25, the guardian ad litem testified regarding the child's manifest best interests and recommended the termination of parental rights. At the conclusion of the hearing, the trial court entered an order terminating the mother's parental rights, based on the mother's statutory consent to termination resulting from her failure to appear at the adjudicatory hearing. The court also found that termination was in the manifest best interests of the child and was the least restrictive means for protecting the child.
On appeal, the mother raised three issues, but the Second District addressed only one—the mother's contention that despite the trial court's entry of the mother's consent, the Department was required to prove the grounds for termination alleged in the petition. In re H.E., 3 So.3d at 342.3 As explained below, the district court rejected this contention and certified conflict with two other district courts on the issue. Id. at 343-44.
The question presented to the Second District—and now to this Court—concerns the interplay of several statutes that govern the termination of parental rights. To clarify the conflict, we first outline the operation of the relevant statutory provisions.
Under section 39.802, Florida Statutes (2007), the operation of the provisions for terminating a parent's parental rights begins with the filing of a petition. The statute provides for the contents of the petition as follows:
(4) A petition for termination of parental rights filed under this chapter must contain facts supporting the following allegations:
(a) That at least one of the grounds listed in s. 39.806 has been met.
(b) That the parents of the child were informed of their right to counsel at all hearings that they attended and that a dispositional order adjudicating the child dependent was entered in any prior dependency proceeding relied upon in offering a parent a case plan as described in s. 39.806.
(c) That the manifest best interests of the child, in accordance with s. 39.810, would be served by the granting of the petition.
§ 39.802(4) (emphasis added). Section 39.806(1), in turn, provides specific statutory grounds for termination. One of the grounds is voluntary surrender through which a parent formally consents to termination:
(a) When the parent or parents have voluntarily executed a written surrender of the child and consented to the entry of an order giving custody of the child to the department for subsequent adoption and the department is willing to accept custody of the child.
1. The surrender document must be executed before two witnesses and a notary public or other person authorized to take acknowledgments.
2. The surrender and consent may be withdrawn after acceptance by the department only after a finding by the court that the surrender and consent were obtained by fraud or under duress.
§ 39.806(1) (emphasis added). The other grounds for termination listed in the statute are involuntary in nature. See § 39.806(1)(b)-(i). In this case, for example, the Department alleged several involuntary grounds under the statute, such as abandonment and that continued parental involvement threatened the child irrespective of services. See id. § 39.806(1)(b)-(c).
After the petition is filed, the case is set for an advisory hearing. See § 39.802(3). Section 39.801 establishes requirements for service and notice and specifically addresses the problem presented in this case of a parent who fails to appear at the adjudicatory hearing. Section 39.801(a) requires that parents be given notice of the advisory hearing and served with a copy of the petition and specifies the language of the notice as follows:
The document containing the notice to respond or appear must contain, in type at least as large as the type in the...
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