R.A. v. Department of Children and Families, 83 So.3d 841 (Fla. 5th DCA 2011)

The father appealed the trial court’s order terminating his parental rights to his five children. He argues the trial court erred in finding the grounds of consent (based on his failure to appear) and abandonment.

The father appeared by phone at the advisory hearing where he entered a denial to the termination petition. At the adjudicatory hearing, the father appeared by phone; however, the court continued the hearing and scheduled a second advisory (not adjudicatory) hearing. The trial court found that he did not receive proper notice to the second advisory hearing so they scheduled a third. Father did not appear at the third advisory hearing and the trial court entered a default judgment against him. Following the adjudicatory hearing where they considered manifest best interest only, the court entered an order terminating the father’s parental rights on the grounds of his failure to appear (consent-by-default) and abandonment.

The Fifth District Court of Appeal (Fifth DCA) agreed with the father who argued that the trial court cannot have more than one advisory hearing, and then default him for not appearing at the third advisory hearing. “Florida’s TPR statutory and rule scheme contemplates only one advisory hearing.” Further the Fifth DCA states “only one advisory hearing is necessary because the “purpose of an advisory hearing is to advise the parents of their right to counsel, appoint counsel if necessary, determine whether the parents will consent to the termination, appoint a guardian ad litem for the children, and set a date for the adjudicatory hearing.” In re E.L., 732 So.2d 37, 39 (Fla. 2d DCA 1999). See § 39.808(2), Fla. Stat.; Fla. R. Juv. P. 8.510(a)(2).”

Reversed and Remanded.

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