Florida/Georgia Personal Injury & Workers Compensation

...Dep't of Children & Family Servs., 768 So.2d 1060, 1065 (Fla.2000). Parental rights may be terminated through adoption, see § 63.062, Fla. Stat. (2003), or the strict procedures outlined in the statutes governing the termination of parental rights. See § 39.801, Fla....

...ring for the petition for termination of parental rights, stating the date, time, and location of said hearing, then failure of that parent to personally appear at the adjudicatory hearing shall constitute consent for termination of parental rights. § 39.801(3)(d), Fla....

...UTES CONSENT TO THE TERMINATION OF PARENTAL RIGHTS OF THIS CHILD (OR CHILDREN). IF YOU FAIL TO APPEAR ON THE DATE AND TIME SPECIFIED, YOU MAY LOSE ALL LEGAL RIGHTS AS A PARENT TO THE CHILD OR CHILDREN NAMED IN THE PETITION ATTACHED TO THIS NOTICE. " § 39.801(3)(a), Fla....

...See § 61.13(2)(b)(1), Fla. Stat. (2003) ("The court shall determine all matters relating to custody of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act."); § 39.801(2), Fla....

...Florida Department of Children & Family Services v. P.E., 4 So.3d 676 (Fla.2009), in which the Second District Court of Appeal addressed a question of statutory construction regarding a parent's implied consent to termination of parental rights under section 39.801(3)(d), Florida Statutes (2007). The statute provides for entry of such consent upon a parent's "failure to personally appear at the adjudicatory hearing." § 39.801(3)(d)....

...The mother's counsel was present but offered no information regarding P.E.'s whereabouts. Finally, the trial court found that the mother had been given the required notice and that her failure to appear constituted consent to the allegations in the petition for termination of parental rights *231 under section 39.801(3)(d)....

...In this case, for example, the Department alleged several involuntary grounds under the statute, such as abandonment and that continued parental involvement threatened the child irrespective of services. See id. § 39.806(1)(b)-(c). After the petition is filed, the case is set for an advisory hearing. See § 39.802(3). Section 39.801 establishes requirements for service and notice and specifically addresses the problem presented in this case of a parent who fails to appear at the adjudicatory hearing. Section 39.801(a) requires that parents be given notice of the advisory hearing and served with a copy of the petition and specifies the language of the notice as follows: The document containing the notice to respond or appear must contain, in type...

...ring for the petition for termination of parental rights, stating the date, time, and location of said hearing, then failure of that parent to personally appear at the adjudicatory hearing shall constitute consent for termination of parental rights. § 39.801(d) (emphasis added). In H.E., the Second District examined these statutes to determine whether they require the Department to present evidence of one of the grounds alleged in the petition under section 39.806 after a parent's consent to termination is entered under section 39.801(3)(d) for failure to appear....

...As explained below, each of these cases conflicts with the Second District's holding in P.E. In R.H., the Third District reached the opposite result on similar facts. When the father failed to attend the adjudicatory hearing, the trial court entered the parent's consent under section 39.801(3)(d) and later denied the father's motion to vacate the consent....

...The district court expressly rejected the contention that the consent alone was sufficient for termination. Id. Then, in S.S., the court relied on R.H. in addressing the mother's second issue on appeal—the claim that entry of the implied consent of section 39.801(3)(d) based on her nonappearance at the advisory hearing was insufficient to support the termination of parental rights....

...also relied on the Fifth District's decision in A.S., the third conflict case. Although the procedural posture of the case differs from the other cases, including H.E., the Fifth District in A.S. addressed the questions of whether the trial court's entry of the implied consent of section 39.801(3)(d) upon a parent's failure to appear constitutes a voluntary or an involuntary termination and whether, despite entry of the consent, the Department must prove the grounds alleged in the petition. A.S., 927 So.2d at 205. The Fifth District concluded that "the Legislature never intended for consent *234 under section 39.801(3)(d) to be a ground for termination," id. at 207, and "that the Legislature never intended that presumed, implied, or constructive consent under section 39.801(3)(d) transforms an involuntary proceeding into one that is voluntary," id. at 208-09. Because the implied consent is neither voluntary nor a ground for termination, the Fifth District reasoned that "consent under section 39.801(3)(d) does not end the judicial labor of the trial court; it must then proceed to receive evidence to support the grounds alleged in the petition for termination." Id. at 208. III. ANALYSIS The question presented is whether when a consent to termination of parental rights has been entered under section 39.801(3)(d) upon the parent's failure personally to appear at the adjudicatory hearing, the trial court must nevertheless receive evidence on the grounds for termination alleged in the petition for termination of parental rights....

...Dep't of Children & Family Servs., 768 So.2d 1060, 1065-66 (Fla.2000) (citation omitted). In J.B., we addressed the constitutional sufficiency of notice given under the predecessor version of the statute at issue here. That earlier version of the statute, like section 39.801(3)(d), required entry of a consent to termination where the parent failed to appear at the advisory hearing....

...at 1067 (quoting J.B. v. Fla. Dep't of Children & Family Servs., 734 So.2d 498 (Fla. 1st DCA 1999)). As was the case with the predecessor provision at issue in J.B., the Legislature's clear intent in this successor statute is evidenced in the plain language of section 39.801(3)(d), which provides that when a parent has been ordered "to personally appear at the adjudicatory hearing" and has been given the required notice concerning the time and place of the hearing, "then failure of that parent to personall...

...ons in the petition and termination of parental rights. See J.B., 768 So.2d at 1067 (referring to the court entering a "consent by default"). The conflict presented in this case concerns the effect of entering the parent's constructive consent under section 39.801(3)(d) in the further proceedings on the termination of parental rights....

...See S.S., 976 So.2d at 42; A.S., 927 So.2d at 208; R.H., 860 So.2d at 988. In sum, these district courts reason that (1) under section 39.802(4)(a), a petition for termination of parental rights must be based on at least one of the grounds for termination provided in section 39.806(1); (2) section 39.801(3)(d)'s implied consent is not listed as a section 39.806 ground; (3) neither section 39.801 nor section 39.806 refers to the other; and, therefore, (4) section 39.801(3)(d) is not a statutory ground for termination and evidence must be presented on the grounds in the petition. It is undeniable that consent to termination based on the parent's failure to appear is not among the grounds for termination listed in section 39.806(1). We therefore disagree with the Second District's analysis, which equates section 39.801(3)(d)'s constructive consent with the voluntary surrender under section 39.806(1)(a)....

...xecution of "a written surrender of the child," with the "surrender document [being] executed before two witnesses and a notary public or other person authorized to take acknowledgments." A constructive consent for failure to appear *236 pursuant to section 39.801(3)(d) clearly is different in character from a "written surrender" under 39.806(1)(a). On the core issue, however, we agree with the Second District that the Department was not required to proceed with its burden to present evidence on the alleged grounds for termination; otherwise the consent pursuant to section 39.801(3)(d) "would be rendered meaningless." In re H.E., 3 So.3d at 343....

...[6] Once the trial court has deemed the parent to have consented to the termination, there is no basis for the parent to complain that the trial court did not consider evidence establishing the existence of a ground for termination under section 39.806(1). The constructive consent provision of section 39.801(3)(d) can only be reasonably understood as providing a basis for termination which precludes a defaulting parent's objection to the absence of proof of a ground for termination under section 39.806(1). No other plausible understanding of the meaning of the constructive consent provision has been advanced. The interpretation adopted by the Third and Fifth Districts effectively drains section 39.801(3)(d) of any meaning. That interpretation therefore must be rejected. Accordingly, we hold that where an order has been properly entered determining that a parent's failure to appear constitutes consent pursuant to section 39.801(3)(d), the parent may not challenge the basis for the termination of parental rights....

...Allowing a parent to contest a termination of the parent's rights in such circumstances would be manifestly inconsistent with the statutory provision that the parent's failure "to personally appear at the adjudicatory hearing shall constitute consent for termination of parental rights." § 39.801(3)(d)....

...the termination by any other party, no purpose would have been served by requiring the Department to present evidence regarding the statutory grounds for termination. As with other defaults, a constructive consent to termination entered pursuant to section 39.801(3)(d) may be set aside under the "usual three-part test." E.S....

...Since there is no basis to justify the reversal of the termination judgment, we quash the district court's decision to reverse and remand for the entry of an order affirming the trial court's decision. IV. CONCLUSION As explained above, we hold that when a parent's consent to termination of parental rights is entered under section 39.801(3)(d), such consent necessarily precludes the parent from objecting to the Department's failure to present evidence to establish the grounds for termination alleged in the petition for termination....

...City of Gainesville, 768 So.2d 432, 435 (Fla.2000) (stating that the canons of statutory construction control when the language of a statute is unclear). The majority recognizes that the failure of a parent to appear for a hearing, along with the consequences of section 39.801(3)(d), Florida Statutes (2007), are not statutorily listed bases or grounds for the termination of rights in section 39.806....

...dicatory hearing. See ch. 99-193, § 42, Laws of Fla. (amending and renumbering the statute). [6] We need not and do not consider any of the parties' arguments or the district courts' discussions regarding the impact of a termination predicated on a section 39.801(3)(d) consent on hypothetical future termination of parental rights proceedings concerning siblings under section 39.806(1)(i). Whether a termination based on constructive consent pursuant to section 39.801(3)(d) should be considered an involuntary termination for purposes of section 39.806(1)(i) is simply not at issue in this case....

...lly mandated narrow construction of the statutory language and the constitutionally required focus on future harm to the child. Justice Bell asserts in his dissenting opinion that a forward-looking construction of section 39.806(1)(d)(1) contravenes section 39.801(9), Florida Statutes, which provides that the provisions of chapter 39 are to be construed "liberally ......

...We stress that there is nothing in this record hinting at any harm to the child by further delay. Nor does DCF contend that the child requires immediate permanency. REVERSED. GUNTHER and MAY, JJ., concur. NOTES [1] The father actually arrived at the courthouse barely an hour after the hearing had ended. [2] See § 39.801(3)(d), Fla....

...The attorney ad litem and the Department objected to father's appearance by telephone and moved for entry of a default. The trial court accepted father's denial by telephone and entered an Order reflecting the same. Following a motion for rehearing, the attorney ad litem and the Department argued that under section 39.801(3)(d), Florida Statutes (2003), failure to personally appear at the advisory hearing after notice constitutes consent to the termination of parental rights....

...at he did attempt to make his presence known to the court. The trial court granted the motion for rehearing and held that father consented to the termination of his parental rights by failing to personally appear at the advisory hearing, pursuant to section 39.801(3)(d), Florida Statutes. We reverse and hold that under the facts of this case, father's appearance by telephone constituted a personal appearance for purposes of section 39.801(3)(d). Thus, the trial court abused its discretion in entering a default. It is well-settled that section 39.801(3)(d) and Florida Rule of Juvenile Procedure 8.510(a)(3) provide statutory and procedural authority for the court to accept a parent's failure to appear at an advisory hearing as constructive consent to termination of parental rights by default....

...1st DCA 2001), a father, living out-of-state, did not personally appear at the advisory hearing. Rather, his attorney appeared in his stead. The trial court treated his failure to personally appear as a default consent to termination. In affirming, the First District held that under section 39.801(3)(d), a parent's personal appearance is required....

...lity to travel to Florida, mother intentionally failed to appear at, or participate in, the hearing. See id. at 833. When mother suggested that the trial court acted improperly by allowing her to appear by telephone, citing the language contained in section 39.801(3)(d), this court held that "neither the plain language of the statute nor case law indicate that an agreement between the parties and the trial court for a parent to appear by telephone is improper." Id....

...The father's attorney objected to termination on this ground at trial. Therefore, the issue was not tried by implied consent. And, while the father did not appear at trial, this cannot be viewed as consent to termination because he did not receive notice of the changed date of the adjudicatory hearing. See § 39.801(3)(d), Fla....

...745, 754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). Thus, the court is also prevented from comparing the birth parents' choice of prospective adoptive parents with other potential placements that the court or the Department might choose for the child. Cf. § 39.801, Fla....

...GERSTEN, Judge (concurring). I concur in the majority's decision to reverse the final judgment for termination of parental rights and finding of a default by consent. I write separately to clarify that defaults by consent can be properly entered against parents pursuant to Section 39.801(3)(d), Florida Statutes (2002). See J.B. v. Fla. Dep't of Children & Family Servs., 768 So.2d 1060 (Fla.2000) (upholding constitutionality of consent to default provision of Section 39.801(3)(d) which permits termination of parental rights based upon a parent's neglect of the proceeding); J.T....

...Dep't of Children and Families, 800 So.2d 692 (Fla. 5th DCA 2001)(parental rights terminated even though parents failed to appear at termination hearing). There is no requirement that a parent be present at trial in order to terminate his or her parental rights. See *991 § 39.801(3)(d), Fla....

...(2002)(authorizing termination of parental rights by default; failure to personally appear at adjudicatory hearing "shall constitute consent for termination of parental rights"); J.B. v. Fla. Dep't of Children & Family Servs., 768 So.2d at 1060; J.T. and N.T. v. Dep't of Children and Families, 800 So.2d at 692. Section 39.801(3)(d) provides that a consent for termination of parental rights shall be entered where: (1) a parent appears at the advisory hearing, (2) the parent is ordered to appear at the subsequent adjudicatory hearing, (3) the parent is provid...

...n 39.806(1)(i), which allows for termination when the parent's rights to another child have been terminated involuntarily. C.C.'s rights to his other child were terminated after C.C. failed to appear at the adjudicatory hearing regarding that child. Section 39.801(3)(d) specifically states that "failure to personally appear shall constitute consent for termination of parental rights by the person given notice." (Emphasis supplied). C.C. was given notice and that notice contained the statutorily *722 required message that failure to appear would constitute consent to the termination of parental rights. § 39.801(3)(a)....

...(the mother) appeals a final order terminating her parental rights. We reverse because the Department of Children and Families, appellee, did not serve the mother, personally or by publication, with a notice of the termination proceeding as required by section 39.801, Florida Statutes (1999), and Florida Rule of Juvenile Procedure 8.505(a)(1) and (c)....

...orida Rule of Juvenile Procedure 8.505(c). The Department provided no evidence of notice by publication as to the mother. On February 24, 2000, the court entered an order terminating the parental rights of both the mother and the father. Pursuant to section 39.801(1), Florida Statutes (1999): All procedures, including petitions, pleadings, subpoenas, summonses, and hearings, in termination of parental rights proceedings shall be according to the Florida Rules of Juvenile Procedure unless otherwise provided by law. Under section 39.801(3)(a), notice of the advisory hearing and a copy of the petition to terminate parental rights must be personally served upon the parents. If the notice cannot be personally served, under section 39.801(3)(b), "notice of hearings must be given as prescribed by the rules of civil procedure, and service of process must be made as specified by law or civil actions." Florida Rule of Juvenile Procedure 8.505, sets forth the requirements go...

...The burden of proof to sustain the validity of service of process is upon the person who seeks to invoke the jurisdiction of the court and, without proper service of process, the court lacks personal jurisdiction over the defendant. See Carlini v. State, Dep't of Legal Affairs, 521 So.2d 254 (Fla. 4th DCA 1988). Under section 39.801, Florida Statutes (1999), and Florida Rule of Juvenile Procedure 8.505(a)(1), a parent in a termination proceeding must be personally served with the petition and notice of an advisory hearing....

...complied with.... The fact that the defendant had actual knowledge of the attempted service cannot be relied upon to justify the failure of the plaintiff to strictly observe and substantially comply with a statute authorizing service by publication. Section 39.801(1) and (3)(a) and rule 8.505(a)(1) and (c) provide the sole manner to effect service of process in a parental termination proceeding....

...ring for the petition for termination of parental rights, stating the date, time, and location of said hearing, then failure of that parent to personally appear at the adjudicatory hearing shall constitute consent for termination of parental rights. § 39.801(3)(d), Fla....

...f at that time. TR. June 10, 2003, at 11. [2] There is a technical error in the otherwise thorough warning given by the General Master. The statute contemplates that "the court orders that parent to personally appear at the adjudicatory hearing...." § 39.801(3)(d), Fla....

...itorious defense to the termination petition. See id. at 988; see also Markowski v. Attel Bank Int'l, 701 So.2d 416, 418 (Fla. 3d DCA 1997). We conclude that the principles outlined in R.H. are applicable when the court has proceeded under paragraph 39.801(3)(d), Florida Statutes, as the court did here....

621) and the termination of parental rights (section 39.801). The Florida Rules of Juvenile Procedure

...MONACO, J. The appellant, E.A., seeks review of a judgment terminating his parental rights to his children, B.S. and B.S. The judgment was based upon E.A.'s implied consent to the termination, resulting from his late arrival at an adjudicatory hearing. See § 39.801(3)(d), Fla....

...was not present. At the request of the Department, the trial court entered a "default" against E.A. More precisely, the trial court considered E.A.'s failure to be present as an implied or constructive consent to the termination of parental rights, pursuant to section 39.801(3)(d), Florida Statutes (2004), which reads: (d) if the person served with notice under this section fails to personally appear at the advisory hearing, the failure to personally appear shall constitute consent for termination of parental *1051 rights by the person given notice....

...should have been aware of the regular congestion, and should have scheduled sufficient time to be present at the commencement of the hearing. [1] The trial court then overruled the objections, and entered the termination order. E.A. timely appealed. Unquestionably, under section 39.801(3)(d), Florida Statutes (2004), and Rule 8.525(d), Florida Rules of Juvenile Procedure, a court may order a parent appearing at an advisory hearing to appear personally at the adjudicatory hearing at a specified date, time, and location....

...I agree that this matter should be remanded for rehearing, but would also require the reassignment of the case to another judge. GRIFFIN, J., concurring specially. E.A. arrived tardily in court during the presentation of DCF's case-in-chief. E.A. did not "fail to personally appear" at the hearing, and section 39.801(3)(d), Florida Statutes, should not have been applied....

...s court held that when the previous termination was the result of the parent's failure to appear at the adjudicatory hearing, as was the case here, it cannot be said that the parent's rights were terminated involuntarily. 854 So.2d at 721-22 (citing § 39.801(3)(a))....

...This court recently decided two strikingly similar cases. See A.J. v. Dep't of Children and Families, 845 So.2d 973 (Fla. 4th DCA 2003); R.P. v. Dep't of Children and Families, 835 So.2d 1212 (Fla. 4th DCA 2003). Significant in the present case, as in R.P., this court discussed section 39.801(3)(d), Florida Statutes, explaining that although the statute authorizes a default at the advisory hearing in termination of parental rights cases, courts should ordinarily refrain from determining a termination of parental rights by d...

...sent at the scheduled hearing and is delayed by forces or circumstances beyond the parent's control. [1] 835 So.2d at 1214. We find the refusal to vacate the default an abuse of discretion. REVERSED. STONE, FARMER and HAZOURI, JJ., concur. NOTES [1] Section 39.801(3)(d), Florida Statutes (2001), provides "If the person served with notice under this section fails to personally appear at the advisory hearing, the failure to personally appear shall constitute consent for termination of parental rig...

...Because the trial court heard the evidence and observed the mother's demeanor, this court should not re-weigh the lower court's conclusions as to her truthfulness. See Rathburn v. Dep't of Children & Families, 826 So.2d 521, 523 (Fla. 4th DCA 2002). Further, section 39.801(3)(d), Florida Statutes, and Florida Rule of Juvenile Procedure 8.510(a)(3), provide statutory and procedural authority for the court to accept a parent's failure to appear at an advisory hearing as constructive consent to termination of parental rights by default....

...In In re W.C., a father, living out of state, did not personally appear at an advisory hearing concerning the termination of his parental rights. 797 So.2d at 1274. Finding that the father had been adequately noticed of the hearing requiring his presence, the First District held that the clear language of section 39.801(3)(d), Florida Statutes, revealed the legislature's intent to require the personal participation of any parent risking a termination of rights....

...v. Dep't of Children & Families, 800 So.2d 692, 693-94 (Fla. 5th DCA 2001)(holding that where parents failed to appear at the advisory hearing, their failure to provide the court with a reasonable excuse for their absence supported termination under section 39.801(3)(d))....

...either of her children in the past three years, that the mother intentionally failed to appear at, or participate in, the hearing. The mother also contends that the court acted improperly by allowing her to appear *834 by telephone, suggesting that section 39.801(3), Florida Statutes, prohibits a parent from appearing by telephone....

...In both cases, the Department of Children and Families filed petitions to terminate the parental rights of fathers whose whereabouts could not be determined. Because their whereabouts were unknown, both fathers were served with TPR petitions and noticed of statutorily mandated advisory hearings by publication. See § 39.801(3)(a), Fla. Stat. (2007) (providing that before parental rights may be terminated, notice of an advisory hearing for the petition and a copy of the petition must be personally served on the parents of the child at issue); § 39.801(3)(b), Fla....

...for "[p]arties whose identities are known and on whom personal service of process cannot be effected"). In each case, the fathers failed to appear at an advisory hearing and were deemed to have consented to termination of their parental rights. See § 39.801(3)(d), Fla....

...advisory hearing, had not been properly served with notice of the TPR petition and the advisory hearing: In this case, however, DCF and the record do not establish that the mother was personally served with the statutory notice required by paragraph 39.801(3)(a), Florida Statutes (2006): FAILURE TO PERSONALLY APPEAR AT THIS ADVISORY HEARING CONSTITUTES CONSENT TO THE TERMINATION OF PARENTAL RIGHTS OF THIS CHILD (OR CHILDREN)....

...We previously have held that a trial court errs when it terminates parental rights following a default but takes no evidence in support of the termination. See R.H. v. Dep't. of Children & Family Servs., 860 So.2d 986, 988 (Fla. 3d DCA 2003). The effect of an "implied, presumed or constructive consent" under paragraph 39.801(3)(d) has been analyzed in detail in Department of Children & Families v. A.S., 927 So.2d 204 (Fla. 5th DCA 2006). That analysis concluded squarely, and we agree, that "consent under section 39.801(3)(d) does not end the judicial labor of the trial court; it must then proceed to receive evidence to support the grounds alleged in the petition for termination." Id....

...Dep't of Children and Families, 724 So.2d 1181 (Fla.1998). All procedures, including petitions, pleadings, subpoenas, summonses, and hearings, in termination of parental rights proceedings shall be according to the Florida Rules of Juvenile Procedure unless otherwise provided by law. § 39.801(1), Fla....

the Department might choose for the child. Cf. § 39.801, Fla. Stat. (2004) (requiring that a court considering

...n of parental rights of M.C.'s two natural children. M.C., who resides in New Jersey, chose not to personally appear and sent his attorney instead. The trial court treated M.C.'s failure to personally appear as a default consent to termination under section 39.801(3)(d), Florida Statutes (2000)....

...Thereafter, the trial court entered an order terminating M.C.'s parental rights. On rehearing, the trial court reaffirmed the termination of M.C.'s parental rights based on M.C.'s failure to personally appear at the advisory hearing. At the time Appellee filed the petition for termination of parental rights, section 39.801(3), Florida Statutes (2000), included two provisions addressing a parent's personal appearance at the advisory hearing. First, section 39.801(3)(a), Florida Statutes (2000), required that the notice of the advisory hearing contain written notice of the consequences of a parent's failure to personally appear. Second, section 39.801(3)(d), provided that: If the person served with notice under this section fails to personally appear at the advisory hearing, the failure to personally appear shall constitute consent for termination of parental rights by the person given notice....

...adjudicatory hearing shall constitute consent for termination of parental rights. (emphasis added). Here, the advisory hearing summons that was personally served on M.C. in New Jersey where he resides contained the following language, as required in section 39.801(3)(a) and Florida Rule of Juvenile Procedure 8.505(b): [F]ailure to personally appear at this advisory hearing constitutes consent to the termination of parental rights of this child (or children)....

...onically on the same day, in which this honorable court found that she had received proper notice and had failed to show good cause why she should be allowed to appear by *739 audio device for the TPR trial rather than in person. This appeal ensued. Section 39.801(3)(d), Florida Statutes (2005), provides that if a person served with notice fails to personally appear at an advisory hearing, the failure to personally appear shall constitute consent for termination of parental rights by the person given notice....

...ent to appear personally at the adjudicatory hearing also constitutes consent for termination of parental rights. There is no question, therefore, that if a parent fails to appear at an appointed time and place for a termination proceeding, sections 39.801(3)(d), Florida Statutes, and rule 8.525(d), Florida Rules of Juvenile Procedure, give the court the authority to consider the absence of the parent to be a consent to the termination of parental rights....

...Generally, a trial judge may, if all the parties consent, allow testimony to be taken through the use of communication equipment. The subsection then details the procedure to be followed in utilizing a telephone for testimony. The default provisions contained in section 39.801(3)(d) concern the requirement of a parent to "appear" at an advisory hearing....

the Department might choose for the child. Cf. § 39.801, Fla. Stat. (2004) (requiring that a court considering

...(2005) (emphasis added). The question here is whether parental rights are "involuntarily" terminated within the meaning of section 39.806(1)(i) when the parents fail to appear for the adjudicatory hearing and the trial court enters the termination order pursuant to section 39.801(3)(d), Florida Statutes (2005), which provides in pertinent part that "failure of [the] parent to personally appear at the adjudicatory hearing shall constitute consent for termination of parental rights." (Emphasis added). We hold that the presumed, implied, or constructive consent that is imposed under section 39.801(3)(d) when a parent fails to personally appear at the adjudicatory hearing does not transform that involuntary proceeding into a voluntary proceeding....

...and W.S., who subsequently married, failed to comply with their case plan and their parental rights to A.P. were terminated after they failed to appear at the adjudicatory hearing. The final judgment emanating from the trial court provided that A.S. and W.S. consented to the termination pursuant to section 39.801(3)(d) and set forth detailed factual findings regarding the neglect of A.P....

...was based on consent and thus could not form a basis for termination under section 39.806(1)(i). Discontent with this ruling, the Department appeals, arguing that the trial court erred as a matter of law in holding that the implied, constructive, or presumed consent imposed pursuant to section 39.801(3)(d) in A.P.'s case necessarily transformed that involuntary termination proceeding into a voluntary proceeding, thereby requiring dismissal of the Department's petition in the case concerning R.S....

...and W.S. both failed to appear at the adjudicatory hearing regarding the termination of their parental rights as to A.P., and neither parent contends otherwise. Hence we must resolve a legal issue that requires us to analyze the interplay between sections 39.801(3)(d) and 39.806(1)(i) to determine whether consent under the former statute renders the proceedings voluntary, thereby precluding termination under the latter....

...o and the opposite meaning of the latter. Reducing *207 their arguments to their essence, "consent" means voluntary and is, therefore, the antithesis of "involuntary." Carrying this argument to its logical conclusion, they contend that consent under section 39.801(3)(d) transforms an otherwise involuntary proceeding into a voluntary proceeding....

...Hence, the Legislature certainly knows the difference between voluntary and involuntary termination and has provided specific provisions for each. Conspicuously absent from the provisions of section 39.806(1) as a ground for voluntary termination is consent under section 39.801(3)(d), and for good reason: the Legislature never intended for consent under section 39.801(3)(d) to be a ground for termination. Rather, section 39.801(3)(d) and its implementing rule, found in Florida Rule of Juvenile Procedure 8.525, are "intended to ensure that the object of the termination petition is not defeated by the neglect of the proceeding by the parent." E.A. v. Dep't of Children & Families, 894 So.2d 1049, 1051 (Fla. 5th DCA 2005). We believe that if the Legislature intended for consent under 39.801(3)(d) to transform an involuntary proceeding into a voluntary proceeding, it surely would have said so. It did not. Further analysis reveals that voluntary termination under section 39.806(1)(a) requires consent by the parents that is altogether different from consent under section 39.801(3)(d). Specifically, consent under section 39.801(3)(d) is implied, presumed, or constructive consent that derives from the parent's failure to appear....

...2d DCA 2004) ("[T]he statutes and rules refer to a parent's `consent.' Because this consent occurs through implication, it may be referred to as `presumed consent,' `implied consent,' or `constructive consent.'"); S.C. v. Dep't of Children & Families, 877 So.2d 831, 832 (Fla. 4th DCA 2004) ("Further, section 39.801(3)(d), Florida Statutes, and Florida Rule of Juvenile Procedure 8.510(a)(3), provide statutory and procedural authority for the court to accept a parent's failure to appear at an advisory hearing as constructive consent to termination of parental rights by default.")....

...When a parent fails to attend an adjudicatory hearing and the trial court enters a judgment based on consent, there are no similar requirements; consent is simply implied or presumed to prevent the parents from improperly manipulating, prolonging, or neglecting the proceedings. Moreover, consent under section 39.801(3)(d) does not end the judicial labor of the trial court; it must then proceed to receive evidence to support the grounds alleged in the petition for termination....

...Dep't of Children & Family Servs., 860 So.2d 986 (Fla. 3rd DCA 2003); J.T. v. Dep't of Children & Families, 800 So.2d 692, 693 (Fla. 5th DCA 2001). In J.T., for example, this court refused to set aside a final judgment based on parental implied consent under section 39.801(3)(d) because evidence was admitted at the adjudicatory hearing to support the grounds for termination alleged by the Department....

...2d DCA 1999) is misplaced. In E.L., the mother's counsel did not concede that his client had been notified of the hearing. Equally important, in E.L., the court terminated parental rights based solely upon the mother's default in failing to appear at the hearing. See § 39.801(3)(d), Fla....

...In R.H., the court cited J.T. and reached the opposite result based on the same reasoning. The trial court did not hold an evidentiary hearing, but simply entered final judgment terminating parental rights on the implied consent of the parents under section 39.801(3)(d) and the documents filed by the Department....

...In setting aside the final judgment, the court explained, "Finally, and most importantly, the trial court erred when it terminated the father's parental rights without the taking of any evidence in support of such termination." 860 So.2d at 988. We believe that consent under section 39.801(3)(d) allows the involuntary proceedings to proceed without the presence of the parents and does not alleviate the need for evidence to support the grounds alleged in the petition. Based on the preceding analysis, we conclude that the Legislature never intended that presumed, implied, or constructive consent under section 39.801(3)(d) transforms *209 an involuntary proceeding into one that is voluntary....

...2d DCA 1999) is misplaced. In E.L., the mother's counsel did not concede that his client had been notified of the hearing. Equally important, in E.L., the court terminated parental rights based solely upon the mother's default in failing to appear at the hearing. See § 39.801(3)(d), Fla....

...form the parents of the time, place, and date of the adjudicatory hearing, left blank a box in which the date and time for the adjudicatory hearing were to have been specified. This happens all too often in juvenile divisions when using form orders. Section 39.801(d), Florida Statutes (1999) provides: (d) If the person served with notice under this section fails to personally appear at the advisory hearing, the failure to personally appear shall constitute consent for termination of parental rights by the person given notice....

...i.e., for a period greater than six months in duration), which vested the Grandparents with a protected, priority adoption status, and an entitlement to notice of the termination-of-parental-rights and adoption proceedings. [12] See §§ 63.0425(1), 39.801(3)(a)(5), Fla....

...he Department of Children and Families. The Grandfather hoped that filing these complaints would save the child. The Grandparents never received any notice of the hearings in the termination-of-parental-rights or adoption cases. Cf. §§ 63.0425(1), 39.801(3)(a)(5), Fla....

...shall notify that grandparent of the impending adoption before the petition for adoption is filed. If the grandparent petitions the court to adopt the child, the court shall give first priority for adoption to that grandparent. (Emphasis supplied.) Section 39.801(3)(a)(5), Florida Statutes (2002), provides: (3) Before the court may terminate parental rights, in addition to the other requirements set forth in this part, the following requirements must be met: (a) Notice of the date, time, and pl...

...A continuance was later granted at the request of the mother's attorney, and the hearing was concluded on June 9, 2004. The trial court did not enter the consent order as to the father or the final judgment terminating parental rights until February 7, 2005. [3] Section 39.801(3)(d), Florida Statutes (2003), provides, in pertinent part, as follows: If a parent appears for the advisory hearing and the court orders that parent to personally appear at the adjudicatory hearing for the petition for termination of...

...oticed for the hearing. The nature of the consent to termination based on a failure to appear is an implied or constructive consent. See T.L.D. v. Dep't of Children & Family Servs. (In re A.N.D.), 883 So.2d 910, 913 n. 2 (Fla. 2d DCA 2004). Although section 39.801(3)(d) allows for an implied consent to termination, "courts 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." Id....

...o other children. The mother is not a party to this appeal. [2] Although the court and the attorneys used the term "default," a parent's failure to appear at the adjudicatory hearing constitutes a "consent" to the termination of parental rights. See § 39.801(3)(d), Fla....

...thstanding the appearance of her attorney. We agree that the trial court was without authority to enter the default and, therefore, reverse. Our resolution of this issue makes it unnecessary for us to discuss the other three points raised on appeal. Section 39.801(3)(d), Florida Statutes (2000), provides the trial court with authority to enter a default against a parent who fails to appear at either an advisory or adjudicatory hearing; however, the statute does not address the failure to appear at a "docket sounding" or scheduling conference....

...irm. The petition for termination was filed based upon the duly executed surrenders of the natural parents. The trial judge set aside the final order terminating parental rights on the basis that the maternal grandmother was entitled to notice under section 39.801(3)(a), Florida Statutes (Supp.1998), as the child had lived with her for at least six months, the length of time specified in the statute. We agree. Section 39.801(3)(a)5, Florida Statutes (Supp.1998), provides that any grandparent entitled to priority for adoption under section 63.0425 must be personally served with a copy of the petition to terminate parental rights and given notice of the date, time, and place of the advisory hearing on the petition....

...nated her parental rights due to her absence. A parent's failure to personally appear at the adjudicatory hearing constitutes a consent for termination of parental rights if the parent has been instructed in person at the advisory hearing to appear. § 39.801(3)(d), Fla....

...The order stated that the trial court had found by clear and convincing evidence that the mother had received notice of the calendar call/trial on October 17, 2001 and was instructed that her failure to appear constituted grounds of termination of parental rights in accordance with Section 39.801(3)(d)....

...for termination of parental rights have been established by clear and convincing evidence, the court shall enter a final judgement terminating parental rights ...." In this case, the evidence was not clear and convincing. The trial court relied upon Section 39.801(3)(d), Florida Statutes (2001), as the basis for the termination....

failure to appear at the adjudicatory hearing. See § 39.801(3)(d), Fla. Stat. (2002). Because we conclude

implied consent to termination, pursuant to section 39.801(3)(d), Fla. Stat. (2016), and proceeded to

...Although this case involves a termination proceeding and not a dependency proceeding, it is comparable to G.A. v. Department of Children & Family Services, 857 So.2d 310 (Fla. 2d DCA 2003), and S.B. v. Department of Children & Family Services, 858 So.2d 1184 (Fla. 2d DCA 2003). See generally § 39.801(3)(d), Fla....

...The Department of Children and Family Services (the Department) and the Guardian ad Litem (GAL) concede that the trial court committed reversible error by finding that the Father's failure to appear constituted his consent to termination and by failing to grant a continuance. We agree and reverse. Section 39.801(3)(d), Florida Statutes (2005), provides that when a parent attends an advisory hearing on a petition for termination of parental rights, is instructed to attend the adjudicatory hearing, and is advised of the date, time, and location...

...onsent to the termination in light of the court's failure to expressly warn her at the previous hearing of her required presence at the next scheduled hearing when the trial actually began. DCF concedes that the court did not admonish her to attend. Section 39.801(3)(d), Florida Statutes, provides: If a parent appears for the advisory hearing and the court orders that parent to personally appear at the adjudicatory hearing for the petition for termination of parental rights, stating the date, ti...

...Procedural due process requires "that a defendant in a termination proceeding will be given fair notice and afforded a real opportunity to be heard and defend in an orderly procedure." M.J.W. v. Dep't of Children & Families, 825 So.2d 1038, 1040 (Fla. 1st DCA 2002). Section 39.801, Florida Statutes (2006), and Florida Rules of Juvenile Procedure 8.505 govern the procedure for giving notice and serving process with respect to a petition to terminate parental rights. Section 39.801(3)(a)1....

...s (2006), requires a court to direct the petitioner to conduct a diligent search to locate the party, unless it would be in the best interest of the child to proceed without actual notice. If a party entitled to personal service cannot be so served, section 39.801(3)(b) thereafter compels notice to be given as required by the rules of civil procedure....

notice and the other procedures required by section 39.801, et seq., Florida Statutes. See F.M. v. State

consent to termination of parental rights under section 39.801(3)(d), Florida Statutes (2007), The statute

failed to appear for the adjudicatory hearing. See § 39.801(3)(d), Fla. Stat. (2005). Based on the trial court’s

...We accept the State's concession of error and reverse the judgment. The record does not support the trial court's finding that the mother had been warned that she was required to appear at the continuation of the adjudicatory hearing, giving "the date, time, and location of said hearing." See § 39.801(3)(d), Fla....

...appear, it was still required to take evidence to determine whether the Department could prove the allegations made in the termination petition. [1] In S.S., the Third District concluded that "`implied, presumed, or constructive consent' under ... `section 39.801(3)(d) does not end the judicial labor of the trial court; it must then proceed to receive evidence to support the grounds alleged in the petition for termination.'" S.S., 976 So.2d at 43 (quoting Dep't of Children & Families v....

...3d DCA 2003) ("[T]he trial court erred when it terminated the father's parental rights without the taking of any evidence in support of such termination."). The Fifth District also has followed this line of reasoning. See Dep't of Children & Families v. A.S., 927 So.2d 204, 208 (Fla. 5th DCA 2006) ("[C]onsent under section 39.801(3)(d) does not end the judicial labor of the trial court; it must then proceed to receive evidence to support the grounds alleged in the petition for termination.")....

...39.810, would be served by the granting of the petition. One of the grounds included in section 39.806 is a parent's voluntary surrender and "consent[ ] to the entry of an order giving custody of the child to the department for subsequent adoption." § 39.806(1)(a). Additionally, section 39.801(3)(d) states that if a parent is provided the proper notice, his or her failure to appear at the adjudicatory hearing *343 "shall constitute consent for termination of parental rights." This court has determined that the termination of...

...tatutory consent is a voluntary, rather than an involuntary, termination. See C.C. v. Dep't of Children & Family Servs. (In re A.D.C.), 854 So.2d 720, 721-22 (Fla. 2d DCA 2003). We understand that this determination renders the consent imposed under section 39.801(3)(d) for failure to appear to be like the consent that results from the execution of a written surrender pursuant to section 39.806(1)(a)....

...The judge denied the motion for a continuance and found that termination was in the best interest of the children. The order terminating J.M.'s parental rights was filed on June 12, 2002. Chapter 39 establishes the statutory framework for terminating parental rights. Section 39.801 provides for notice, service of process and termination of parental rights for failure to appear: (1) All procedures, including petitions, pleadings, subpoenas, summonses, and hearings, in termination of parental rights proceedings sha...

...(emphasis supplied) Florida Rule of Juvenile Procedure 8.505 contains virtually the same provisions. J.M. could not be located and thus the Department attempted to serve her through publication of the notice in a local newspaper. Florida Rule of Juvenile Procedure 8.505(c) and section 39.801(3)(b), Florida Statutes, both provide that parties upon whom personal service of process cannot be affected shall be served by publication as provided by law....

...As such, the more specific rule should control over the general rule. [2] Further, as pointed out in M.E., the notice in that case was not the initial petition for termination of parental rights and notice of the date, time and place of the advisory hearing. Rule 8.505(a) as well as section 39.801, Florida Statutes, quoted above, both require that the parents of a child in a termination case be personally served with a copy of the petition and notice of the date, time and place of the advisory hearing. Thus, service of the petition and notice of the advisory hearing on a parent's attorney is not sufficient. With regard to what constitutes constructive service on a missing parent, rule 8.505(c) requires publication "as provided by law," and section 39.801(3) requires service of process as specified by law or civil actions....

...4th DCA 1988), in this case the parents defaulted, and the court *932 entered a termination based upon the default, not on evidence presented regarding the grounds for termination. Failure to personally appear at an advisory hearing for which the parent received statutory notice constitutes consent for termination. § 39.801(3)(d), Fla....

service of process was provided, pursuant to section 39.801(3)(b), Florida Statutes (2010), via publication

the entry of default would have been proper. See § 39.801(3)(d), Fla. Stat. (2002)(stating that failure

terminated involuntarily. 854 So.2d at 721-22 (citing § 39.801(3)(a)). Accordingly, we must reverse the termination

Florida Statutes (1997), and renumbering it as section 39.801(3)(d)). In closing, we note that due to the

attorney’s fees to Respondent is quashed. See § 39.801(3)(d), Fla. Stat. (2009) (providing that a parent’s

involving the termination of parental rights. See § 39.801(2), Fla. Stat. (“The circuit court shall have

entering a consent to the judgment pursuant to section 39.801(3)(d), Florida Statutes (2012), we disagree

appear as a default consent to termination under section 39.801(3)(d), Florida Statutes (2000). Thereafter

an advisory hearing. We reverse. Pursuant to section 39.801(3)(a)(1), Florida Statutes (1999), and Florida

parental rights on behalf of G.H. as to D.E.B. See § 39,801(3)(d) of the Florida Statutes (2016) (“If the

parent fails to appear for an advisory hearing, see § 39.801(3)(d), Fla. Stat. (2017), we note that the best

parent fails to appear for an advisory hearing, see § 39.801(3)(d), Fla. Stat. (2017), we note that the best

her parental rights. We agree and reverse. Section 39.801(3)(d), Florida Statutes (2004), provides that

...The Mother argues that the trial court abused its discretion in denying her counsel's request for a continuance when the Mother failed to appear at the adjudicatory hearing and in determining that her failure to appear constituted a consent to the termination of her parental rights. We agree and reverse. Section 39.801(3)(d), Florida Statutes (2004), provides that a parent's failure to personally appear at the adjudicatory hearing constitutes a consent for termination if the parent had been advised in person at the advisory hearing to appear....

...him that they were having transportation problems. Counsel requested a continuance and assured the court that he would provide the Mother transportation to the next hearing. The trial court denied counsel's request for a continuance and, pursuant to section 39.801(3)(d), determined that her failure to appear constituted a consent to the termination of her parental rights....

858 So.2d 1184 (Fla. 2d DCA 2003). See generally § 39.801(3)(d), Fla. Stat. (2002) (explaining procedure

grant a continuance. We agree and reverse. Section 39.801(3)(d), Florida Statutes (2005), provides that

Litem Program, concede that the requirements of section 39.801(3)(d), Florida Statutes (2012) were not met

...ntal rights because "we read the order under review as stating that the trial court based its finding that termination of parental rights was not in C.W.'s best interests solely on the availability of a relative placement, in direct contravention of section 39.801(1)." Guardian Ad Litem Program v....

her parental rights by “consent,” pursuant to section 39.801 (3)(d) of the Florida Statutes (2010). The

court entered a default against her pursuant to section 39.801(3)(d), Florida Statutes (2020), which she claims

rights by implied or constructive consent under section 39.801(3)(d), Florida Statutes (2010). A.S., 927 So

hearing, the mother failed to appear. Pursuant to section 39.801(3)(d), Florida Statutes, the court entered

adjudicatory hearing under section 39.801(3)(d), Florida Statutes (2018).2 Section 39.801(3)(d) provides the

appear by Zoom, the trial court, applying section 39.801(3)(e), Florida Statutes, presumed consent to

amended section 39.462 and transferred it to section 39.801, Florida Statutes (Supp. 1998). See ch. 98-403

Father’s motion. This appeal followed. Section 39.801(3)(d), Florida Statutes (2016), authorizes

squarely, and we agree, that “consent under section 39.801(3)(d) does not end the judicial labor of the

amendment brings the rule into conformance with section 39.801(3)(a) and (3)(d), Florida Statutes (2004).

notice of the advisory hearing as required by section 39.801(3)(a), Florida Statutes (2000). Therefore,

notice of the advisory hearing as required by section 39.801(3)(a), Florida Statutes (2001). Therefore,

...termination of parental rights. As background, after the father filed a notice of appeal in case number 2D14-5630, we granted his attorney's motion to relinquish jurisdiction to hold a hearing on the father's motion to set aside his deemed consent under section 39.801(3)(d), Florida Statutes (2014)....

...Without further inquiry and in the absence of a motion to continue by the father's attorney, the trial court deemed the father to have implicitly consented to the termination of his -2- parental rights by default under section 39.801(3)(d)....

...the option to appear by telephone if he were incarcerated at the time of the adjudicatory hearing. The trial court rejected the father's explanation for his failure to appear, determining he had failed to demonstrate excusable neglect. Section 39.801(3)(d) states that the "failure of [a] parent to personally appear at the adjudicatory hearing shall constitute consent for termination of parental rights." That being said, it is axiomatic that "Florida public policy favors an adjudi...

...termination of parental rights. As background, after the father filed a notice of appeal in case number 2D14-5630, we granted his attorney's motion to relinquish jurisdiction to hold a hearing on the father's motion to set aside his deemed consent under section 39.801(3)(d), Florida Statutes (2014)....

...Without further inquiry and in the absence of a motion to continue by the father's attorney, the trial court deemed the father to have implicitly consented to the termination of his -2- parental rights by default under section 39.801(3)(d)....

...the option to appear by telephone if he were incarcerated at the time of the adjudicatory hearing. The trial court rejected the father's explanation for his failure to appear, determining he had failed to demonstrate excusable neglect. Section 39.801(3)(d) states that the "failure of [a] parent to personally appear at the adjudicatory hearing shall constitute consent for termination of parental rights." That being said, it is axiomatic that "Florida public policy favors an adjudi...

terminating parental rights until February 7, 2005.3 Section 39.801(3)(d), Florida Statutes (2003), provides, in

discuss the other three points raised on appeal. Section 39.801(3)(d), Florida Statutes (2000), provides the

a chance that S.K’s father could be found. Section 39.801 of the Florida Statutes (2001) states that

presumed, or constructive consent’ under ... ‘section 39.801(3)(d) does not end the judicial labor of the

PER CURIAM. AFFIRMED. See § 39.801(3)(d), Fla. Stat. (2003). PETERSON, THOMPSON and ORFINGER, JJ., concur

...Stat. (2014). Furthermore, the trial court's factual findings cannot be sustained unless they are supported by substantial, competent evidence. See M.J.S. v. Dep't of Children & Family Servs., 764 So. 2d 825, 826 (Fla. 2d DCA 2000). Although section 39.801(3)(d) authorizes constructive or implied consent in termination cases, determining a termination of parental rights by default for failure to appear is disfavored....

the default a consent to the termination. See § 39.801(3)(d); Fla. R. Juv. P. 8.510(a)(3), 8.525(d);

constitute consent for termination of parental rights. § 39.801(3)(d), Fla. Stat. (2003); see ch. 99-193, § 42

court entered a default against the Mother. See § 39.801(3)(d), Fla. Stat. (2022) (“If a parent appears

adjudicatory hearing regarding that child. Section 39.801(3)(d) specifically states that “failure to

whether that finding is supported. Section 39.801(1), Florida Statutes (2022), provides that

entering a default consent termination under section 39.801(3)(d), Florida Statutes (2017), and Florida

entering a default consent termination under section 39.801(3)(d), Florida Statutes (2017), and Florida

hearing for termination of parental rights. Section 39.801(3)(d), Florida Statutes (2002), provides in

trial court did not satisfy the requirements of section 39.801(S)(d), Florida Statutes (2000). Therefore;

the constructive consent. We reverse. Section 39.801(3)(d), Florida Statutes (2019), expressly authorizes

U.S. 745, 753 (1982)). Under section 39.801(3)(a), Florida Statutes (2018), parents must

SCALES, JJ. PER CURIAM. Affirmed. See § 39.801(3)(e), Fla. Stat. (2024) (“If a parent appears

instructed in person at the advisory hearing to appear. § 39.801(3)(d), Fla. Stat. (2005). However, “courts should

advisory hearing or an adjudicatory hearing, section 39.801(3)(d), Florida Statutes (2004), provides: If