JB v. Department of Children and Family Services

Decision Date14 May 1999
Docket NumberNo. 98-1310.,98-1310.
Citation734 So.2d 498
PartiesJ.B., Father of J.B., JR., J.B., P.B., and B.B., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
CourtFlorida District Court of Appeals

Joyce Sibson Dove, Tallahassee, for Appellant.

Charles A. Finkel, Tallahassee, for Appellee.

PADOVANO, J.

This is an appeal from a final order terminating parental rights. The natural father failed to appear at the advisory hearing, and the trial court entered a consent to the termination on his behalf. On appeal, the father contends that he was denied the right to due process of law because he did not receive adequate notice of the advisory hearing. Under the circumstances of this case, we find no violation of the father's due process rights. Therefore we affirm.

The history of this controversy dates back to November 15, 1988, when the state filed a petition to declare each of the natural father's five children dependent. At that time, the father consented to a finding of dependency, and all of the children were placed in the custody of their grandmother. The dependency file was closed in September of 1990, and the children remained with their grandmother.

In May of 1993, the father surrendered his parental rights to one of his children, T.B., with the advice of appointed counsel. The remaining four children were removed from their grandmother's home on August 9, 1995, and placed in foster care. From that point forward, there were seven hearings on various matters, six of which the father failed to attend. One of the hearings he missed was a hearing on May 22, 1996, to discuss a change in the goal from reunification to a termination of parental rights.

The Department of Children and Family Services filed a petition on October 21, 1996, to terminate the father's rights to the four remaining children.1 This petition was served on the father by personal service in Tallahassee on October 29, 1996, at 7:55 a.m., along with a summons informing the father that he was to attend an advisory hearing on October 30, 1996, at 9:00 a.m. in Tallahassee. Because the father did not attend the advisory hearing or call to explain why he could not attend, the trial court entered a consent on his behalf under the provisions of section 39.462(1)(d), Florida Statutes.

The first hearing the father attended in the course of the termination proceeding was the adjudicatory hearing in December 1996. At that time, the trial court explained that a consent had been entered at the advisory hearing but allowed the father to participate in the hearing. The father informed the court that he had only received twenty-four hours' notice of the prior hearing, that he had not read the petition until later in the week, that he had been sick on the day of the advisory hearing, and that he had only a ninth grade education. He asked the court to appoint counsel on his behalf. The trial court denied this request and declined to continue the case.

Following the adjudicatory hearing, the trial court rendered a final order terminating the father's parental rights. This order was appealed and reversed. In J.B. v. Department of Children and Family Services, 703 So.2d 1208 (Fla. 1st DCA 1997), this court remanded the case to the trial court, allowing the father to "attempt to set aside the consent by default and present evidence at an adjudicatory hearing." Id. at 1210.

A hearing was held in the trial court on March 23, 1998, at which time the court considered the father's request to set aside the consent. The father argued that he had not received reasonable notice of the advisory hearing and that the hearing was fatally flawed because an attorney was not appointed for him. The trial court denied the father's motion because he did not offer any valid excuse for his failure to appear. The court then rendered a second final order terminating the father's parental rights to the children.

The issue on appeal is whether the state deprived the father of his right to due process of law by giving him only twenty-four hours' notice of the advisory hearing. Although the notice should have been served further in advance, we conclude that it was sufficient to meet minimum due process requirements. An advisory hearing in a termination of parental rights case is merely a preliminary step in the process, at which no right is finally adjudicated. A parent is not required to prepare for an advisory hearing or to retain counsel in advance. All that is required of the parent is to appear at the hearing or to inform the court of the need for a postponement. In the present case, the father received the notice of the advisory hearing but did not inform the court that he would be unable to attend. Nor did he seek to excuse his absence at the advisory hearing at any point in the process before the final hearing. For these reasons, we reject the father's claim that he was denied the right to due process of law.

Procedural due process is not evaluated by fixed rules of law, but rather by the requirements of a particular proceeding. This principle has been stated often in the opinions of the United States Supreme Court, most recently in Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997). As the Court explained in Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748 6 L.Ed.2d 1230 (1961), due process, "[u]nlike some legal rules, is not a technical concept with a fixed content unrelated to time, place and circumstances." To the contrary, the Court has consistently held that due process "is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). See also F.D.I.C. v. Mallen, 486 U.S. 230, 108 S.Ct. 1780, 100 L.Ed.2d 265 (1988)

; Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965).

The amount of notice, like other components of procedural due process, depends on the nature of the proceeding. For example, the amount of notice that is necessary to provide a meaningful opportunity to be heard is not the same for an evidentiary hearing as it is for a status conference. The opportunity to be heard at an evidentiary hearing requires time to secure the attendance of witnesses and to prepare for the presentation of evidence and argument. In contrast, the preparation for a status conference may require little more than an examination of the file. Ample notice should be given in either case, as a matter of courtesy, but the amount of time necessary to provide an opportunity to be heard varies depending on the type of hearing. The notice in the present case was adequate, given the nature of an advisory hearing.

The purpose of an advisory hearing is to ensure that the parties have notice of the petition and that they are informed of their rights. During the hearing, the trial court must (1) determine whether the parent will enter an admission, denial, or consent to the petition; (2) advise the parent of the right to counsel and appoint counsel for the parent if necessary; and (3) appoint a guardian ad litem for the child. See Fla. R. Juv. P. 8.510; § 39.466, Fla. Stat. (1995). The court must then set an adjudicatory hearing within forty-five days, at which time the parties may present evidence and argument as they would in a nonjury trial. An advisory hearing must be conducted as soon as possible after all parties have been served with the petition. See § 39.466(1), Fla. Stat. (1995).

A parent who is served with a petition for termination of parental rights must appear at the advisory hearing or otherwise respond to the notice of the hearing. According to section 39.462(1)(d), Florida Statutes, the failure to respond or appear at an advisory hearing is deemed to be a consent to the petition. This provision is necessary to ensure that the object of the petition is not defeated by the parent's neglect of the proceeding. It enables the trial court to bring a termination of parental rights case to a conclusion even if the parent has chosen not to participate.

The parent's rights are also protected. Section 39.462, Florida Statutes provides that "[b]efore the court may terminate parental rights" the parent must be personally served with a notice of the advisory hearing. See also Fla. R. Juv. P. 8.505(a)(1). Furthermore, this statute requires that the notice include a warning in the following or substantially similar language: "FAILURE TO RESPOND TO THIS NOTICE OR TO APPEAR AT THIS HEARING CONSTITUTES CONSENT TO THE TERMINATION OF PARENTAL RIGHTS OF THIS CHILD (OR THESE CHILDREN)" (Capitals in original). These notice provisions ensure that parental rights will not be terminated without the parent's knowledge and acquiescence. Any parent who is able to read this notice would appreciate the need to appear at the hearing or to respond to the notice in some other way if an appearance is not possible.

Given the nature of an advisory hearing, we conclude that the notice in this case was sufficient. Our decision would surely be different if the notice had been a notice of a final hearing or any other hearing that could reasonably require preparation. See, e.g., Matter of Adoption of Baby James Doe, 572 So.2d 986 (Fla. 1st DCA 1990)

(holding that two days' notice of a final hearing on a contested adoption was insufficient); Harreld v. Harreld, 682 So.2d 635 (Fla. 2d DCA 1996) (holding that two days' notice was not sufficient for a final hearing in a contested dissolution of marriage case). As previously explained, however, the purpose of an advisory hearing is to inform the parties of their rights. It is true that the trial court may enter a consent on behalf of an absent parent, but the parent can avoid a decision by consent merely by attending the hearing or by making some kind of response.

There is certainly a great deal at stake in a termination of...

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