UNPLED GROUNDS AND IMPLIED CONSENTtermination of parents’ parental rights pursuant to 39.806(1)(e) as to one child was improper since there was no adjudication of dependency and no case plan filed. DCA held unpled grounds were not tried by implied consent.

T.H. v. State, Department of Children and Families, 226 So.3d 915 (2017)

The Department filed a petition to terminate Mother’s parental rights as to S.H. based
on section 39.806(1)(b), (1)(c), and (1)(e) and based on section 39.806(1)(b) for
Father. After the petition was filed, Mother gave birth to another child, T.D.H., who was
sheltered and placed with his paternal grandmother. The Department filed a
supplemental petition for termination of parental rights with respect to T.D.H., alleging a
failure to substantially comply with the case plan under section 39.806(1)(e) for both
parents. The termination of parental rights was granted as to both children.

The Mother and Father argued that the termination with respect to T.D.H. was error, as
the Department did not plead a valid ground for termination. The Department and the
Guardian Ad Litem conceded error, but argued that unpled grounds were tried by
implied consent and established. The DCA disagreed and reversed the termination as
to T.D.H. holding that the parents were not on notice that the court could terminate their
parental rights as to T.D.H. based on unpled grounds.

Practice Tip: in addition to addressing the above, this opinion also provides a good
factual analysis regarding abandonment pursuant to §39.806(1)(b).

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