Denial of Motion for Continuance-Trial court abused discretion in denying mother’s motion for continuance where denial created an injustice for the mother, no dilatory practices were demonstrated, and no prejudice was shown

Y.G. v. Dep’t of Children & Families, 246 So. 3d 509, 2018 Fla. App. LEXIS 6165 (Fla. 1st DCA 2018)

After mother’s infant was removed by the Department, she executed a consent to adoption and relinquishment of rights in favor of the maternal grandfather.  Grandfather filed a motion to intervene the day before the scheduled TPR trial.   The Mother moved to continue the TPR trial to allow the parties to prepare for a best interest hearing required by the intervention statute.  The trial court denied the motion for continuance and proceeded with the TPR trial, after which it terminated mother’s parental rights.

Mother appealed the order terminating her parental rights, arguing that the trial court should have continued the TPR trial to allow for a best interest hearing under the intervention statute.  In determining whether the trial court abused its discretion in denying the Mother’s request the First DCA consider three factors: 1) whether denial of the motion creates injustice for the movant; 2) whether the cause of the request was foreseeable or due to dilatory practices; and 3) the potential of prejudice or inconvenience to opposing parties.  The DCA held first, the Mother’s right to select an adoptive placement was not absolute it should be considered with other factors.  Second, no dilatory practices were demonstrated as the grandfather had put the court on notice the paperwork needed to conduct the hearing would be filed shortly.  Lastly, the court determined there would be little prejudice as the child’s permanency would not be delayed and all appropriate parties would have an opportunity to present their position at the best interest hearing.  Based upon these factors the DCA determined the trial court abused its discretion in denying the motion for continuance.

Reversed and remanded.

Practice Tip: #1. This opinion recognizes the parent’s right to select an adoptive placement is statutory and not constitutional by holding that it is not absolute. #2. This opinion analyzed the contours of court discretion when determining whether to grant a motion to continue. It does not interpret the provisions of the adoption intervention statute.

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