Implied Consent to Termination Petition: Trial court erred in denying motion to vacate implied consent on unique facts of the case

T.H. v. Department of Children and Families, 2017WL2960589, 3D17-727 (Fla. 3d DCA Jul. 12, 2017)

At the outset of the TPR trial, the Department moved for a continuance, which the court granted. The Department then asked the court to enter an implied consent against the father because of his failure to appear after proper notice. The court granted the request, and the father filed a motion to vacate.

At the motion hearing, the father testified he had been hospitalized on the day of trial. He presented argument as to each of the statutory TPR grounds alleged by the Department. The court concluded the father failed to present a meritorious defense and denied the motion.

On concessions of error by both the Department and the GAL, the Third DCA reversed, noting the unique circumstances of the case including the fact that the Department had requested a continuance of the trial, the father was hospitalized at the time of the trial, and the father presented argument as to each ground for termination. On that record, the Court held the trial court erred in denying the motion to vacate and reversed the order entering the implied consent.

Practice Tip: This case reiterates that courts in Florida should ordinarily refrain from determining a termination of parental rights by default when an absent parent makes a reasonable effort to be present at a hearing but is prevented or delayed by circumstances beyond the parent’s control. Public policy favors an adjudication on the merits over the entry of a default, and thus a properly filed motion to vacate a consent by default should be liberally granted, especially in cases involving a parent’s fundamental right to the care, custody, and control of a child.

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