Error for trail court to modify permanency as to father who was not present at the hearing

T.B. v. Department of Children and Families, — So.3d —- (2017)

After the parents substantially complied with their case plans, the trial court reunified as to both parents and set a judicial review hearing for six months later as required by section 39.701(1)(b), Fla. Stat. (2016). Shortly after reunification, but before the hearing, the father was arrested for burglary and larceny.

Father was not present at the judicial review hearing due to his incarceration, and there was no evidence that father was intentionally absent, waived his right to appear or that an order was entered directing that he be transported to the hearing.

At the hearing, the trial court terminated both supervision and jurisdiction but also modified permanency as to the father, ordering that the father’s visitation would be at the discretion of the mother. The father’s attorney objected to the order, arguing that the father was incarcerated and had a right to be present. The trial court disagreed and entered the order.

The appellate court found that the trial court violated father’s due process rights when it modified permanency during his involuntary absence and reversed and remanded the case.

Practice Tip: If a parent is incarcerated, steps must be taken to assure they are present at all hearings. If it is not possible because the parties were not aware of the incarceration, the hearing should be continued for the shortest amount of time possible to allow for the parent’s presence. To do otherwise may constitute reversible error and therefore, delayed permanency.

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