In re S.M., 2016 WL 275273 (Fla. 2nd DCA)

Father appealed a final judgment terminating his parental rights and an order denying his motion to set aside his implied consent to termination based on his failure to appear at the hearing. Father asserted that he provided evidence of excusable neglect for his failure to appear. The Second District Court of Appeal (Second DCA) reversed the order denying Father’s motion and remanded for a new termination hearing.

Father was incarcerated at the time of the termination hearing and was refused transport to the courthouse. He argued that he believed he could appear by telephone and remained by the telephone waiting for a phone call from the court.   The record showed that the trial judge previously told Father he would have the option of appearing by phone if he was incarcerated at the time of the hearing.

Florida Statute § 39.801(3)(d) provides that the “failure of [a] parent to personally appear at the adjudicatory hearing shall constitute consent for termination of parental rights.” The Third DCA referenced several cases, however, that favored adjudication on the merits over an entry of default. In three such cases, the Second DCA allowed for a continuance or telephonic participation.

To set aside a default judgment, Father bore the burden of showing he “act[ed] with due diligence, demonstrate[d] excusable neglect, and demonstrate[d] the existence of a meritorious defense to the termination petition.” Department of Children and Family Services v. P.E., 14 So. 3d 228, 236 (Fla. 2009). The Third DCA found that Father acted diligently in seeking to set aside his consent by default. Noting the trial court’s prior statement to Father that he could participate by phone, the Third DCA found Father’s failure to appear was based on excusable neglect. Finally, because Father asserted Mother kept the children from him, which, if proven, could be a defense to abandonment, the Second DCA found Father met his burden of persuasion to set aside the default.