In re IA, 2D02-5523.

• Decision Date: 10 October 2003
• Docket Number: No. 2D02-5523.,2D02-5523.
• Citation: 857 So.2d 310
• Parties: In the Interest of I.A., a minor child. G.A., Appellant, v. Department of Children and Family Services, Appellee.
• Court: Florida District Court of Appeals

857 So.2d 310

In the Interest of I.A., a minor child.

G.A., Appellant, v. Department of Children and Family Services, Appellee.

No. 2D02-5523.

District Court of Appeal of Florida, Second District.

October 10, 2003.

Alyssa L. Katz of Michael P. Maddux, P.A., Tampa, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Tanya E. DiFilippo, Assistant Attorney General, Tampa, for Appellee.

WHATLEY, Judge.

G.A., the father, appeals an order adjudicating his daughter, I.A., dependent. The order was entered after the trial court found G.A. in default for his failure to appear. We reverse.

On October 30, 2002, the Department of Children and Family Services (Department) filed its petition alleging that I.A. was dependent, and the case was set for arraignment on December 3, 2002, at 9:00 a.m. The transcript of the arraignment hearing reflects that the case was the eleventh case set on the docket that morning.¹ When the case was called, it was noted that the mother was present and that G.A. was in the restroom. After hearing from the parties who were present, the trial court ordered that the case be set for a status conference on January 28, 2003, so that an evaluation could be obtained.

Thereafter, the trial court began to call the next case, but then called all of the parties back, finding that G.A. was still not present. It was again noted that G.A. was in the bathroom. Pursuant to a motion by the Department, the trial court entered a default against G.A. for failing to appear. It was then noted that G.A. was walking in the courtroom. The trial court stated, "Well, that's too late. You can just appeal if you need to. The record reflects it's 20 minutes to 10:00. This thing was set for 9:00." G.A. thereafter made a motion to set aside the default which was denied.

We first note that although the trial court used the term "default," the term "consent" is the proper term to be used when a parent fails to appear at an arraignment hearing.² Section 39.506(3), Florida Statutes (2002), provides in part, "Failure of a person served with notice to personally appear at the arraignment hearing constitutes the person's consent to a dependency adjudication." Pursuant to the statute, the court is authorized to find that a parent consented to the adjudication of dependency after he or she failed to appear at arraignment after proper notice. In re S.C., 2003 WL 21766512, 857 So.2d 217 (Fla. 2d DCA 2003) (holding that nothing in the statute allows the entry of a default against a parent who fails to appear and that "consent" is the preferable term).

In the present case, we conclude that the trial court abused its discretion in finding that G.A. consented to the adjudication of dependancy. In R.P. v. Department of Children and Families, 835 So.2d 1212 (Fla. 4th DCA 2003), a petition was filed seeking the termination of parental rights and the matter was set for an advisory hearing. At the beginning of the hearing, the father's attorney noted that, due to the fault of his office, the father was not told, until 5:45 p.m. the previous day, that it was necessary for him to be at the hearing. The attorney further noted that the father lived 200 miles from the court and did not have a vehicle. The attorney requested a brief continuance to allow the father time to appear. When the father had not yet arrived for the afternoon session, the father's attorney requested another continuance until his client's arrival, which request was denied. The trial court entered a default, thereby terminating the father's parental rights. Id. at 1213. The father arrived at the courthouse about one hour subsequent to the end of the hearing. Id.

The Fourth District held that the trial court's failure to grant a further continuance until the following day was an abuse of discretion. Id. The court noted that the trial court had been advised the father was en route, there was no indication of stalling or disregard by the father, the requested continuance was for a short time, and there was no showing that the continuance would have had adverse consequences to the child. Id. The Fourth District held that "courts should ordinarily refrain from determining a termination of parental rights by default where an absent parent is making reasonable effort to be present at the scheduled hearing and is delayed by forces or circumstances beyond the parent's control." Id. at 1214. See A.M. v. Dep't of Children and Families, 853 So.2d 1084 (Fla. 4th DCA 2003) (holding that trial court erred in refusing to vacate default judgment against parents who were one hour late to hearing because they were mistaken about the public...