IN THE INTEREST OF T.S., A CHILD. C.D., APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES, APPELLEE
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The Florida Second District Court of Appeal reversed a trial court's termination of parental rights based on a prior involuntary termination of rights to a sibling, holding that a termination resulting from the parent's failure to appear is not involuntary under Florida law. The court also certified a conflict with another district court's finding that the governing statute is unconstitutional.
A termination of parental rights resulting from a parent's failure to appear at an adjudicatory hearing cannot be characterized as an involuntary termination under section 39.806(1)(i). Therefore, the trial court's termination of C.D.'s parental rights based on this ground was improper and must be reversed.
[1] A prior termination of parental rights is not considered involuntary when it resulted from the parent's failure to appear at the adjudicatory hearing.
[2] Termination of parental rights under a statute allowing termination when parental rights to a sibling have been terminated involuntarily requires proof that the prior ter…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“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”
Establishes the key holding that termination by failure to appear does not constitute involuntary termination under the statute
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceC.D. is the natural mother of T.S. The trial court terminated C.D.'s parental rights to T.S. based on section 39.806(1)(i), Florida Statutes, which pe…
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DAVIS, Judge.
C.D., the natural mother of T.S., challenges the trial court’s order terminating her parental rights to her son. C.D. argues that the Department of Children and Family Services (DCF) failed to prove that the prior terminations were involuntary as required by the statute. We agree and reverse the final judgment. See C.C. v. Dep’t of Children & Family Servs., 854 So. 2d 720, 2003 WL 21973599 (Fla. 2d DCA Aug.20, 2003).
The trial court here based the termination of C.D.’s parental rights on section 39.806(l)(i), Florida Statutes (2001), which allows termination “[w]hen the parental rights of the parent to a sibling have been terminated involuntarily.” In C.C., this 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)). Accordingly, we must reverse the termination of C.D.’s rights to T.S. and remand for further proceedings consistent with this opinion.
However, we also note that during the pendency of this appeal, the Fourth District found section 39.806(l)(i) to be unconstitutional. See F.L. v. Dep’t of Children & Families, 849 So. 2d 1114 (Fla. 4th DCA 2003). In doing so, the court certified conflict with A.B. v. Department of Children & Families, 816 So. 2d 684 (Fla. 5th DCA 2002), which found the provision to be constitutionally valid. The Fourth and Fifth Districts differed on whether the statute unconstitutionally shifts the burden of proving a parent’s fitness, or lack thereof, from DCF to the parent by allowing prior terminations to evidence unfitness to parent the subject child.
We agree with the conclusion expressed in AB. that the statute is constitutional. We find the reasoning in A.B. to be consistent with our prior holding in In re W.D.N., 443 So. 2d 493 (Fla. 2d DCA 1984), and with the Florida Supreme Court’s reasoning in Padgett v. Department of Health & Rehabilitative Services, 577 So. 2d 565 (Fla.1991). Accordingly we certify conflict with F.L., 849 So. 2d 1114.
Reversed and remanded; conflict certified.
FULMER and VILLANTI, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Padgett v. Dep't OF Health & Rehabilitative Servs., 577 So. 2d 565 (Fla. 1991)
- In the Interest of W.D.N., II, 443 So. 2d 493 (Fla. 2d DCA 1984)
- Brown v. State, 849 So. 2d 1114 (Fla. 3d DCA 2003)
- A.B. v. Dep't of Child. & Families, 816 So. 2d 684 (Fla. 5th DCA 2002)
- In the Interest of A.D.C. v. Dep't of Child. & Fam. Servs., 854 So. 2d 720 (Fla. 2d DCA 2003)