Db v. Dept. of Children & Families

742 So. 2d 275, 1998 Fla. App. LEXIS 2867, 1998 WL 128888
CourtDistrict Court of Appeal of Florida
DecidedMarch 24, 1998
Docket97-2626
StatusPublished
Cited by6 cases

This text of 742 So. 2d 275 (Db v. Dept. of Children & Families) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Db v. Dept. of Children & Families, 742 So. 2d 275, 1998 Fla. App. LEXIS 2867, 1998 WL 128888 (Fla. Ct. App. 1998).

Opinion

742 So.2d 275 (1998)

D.B., a/k/a/ D.S., Appellant,
v.
DEPT. OF CHILDREN AND FAMILIES, Appellee.

No. 97-2626.

District Court of Appeal of Florida, First District.

March 24, 1998.

George F. Schaefer, Gainesville, for Appellant.

Diane W. Baylor, Gainesville, for Appellee.

MINER, Judge.

Appellant seeks review of an order granting a petition for termination of parental rights in her two minor children. We affirm the trial court's determination that the order of dependency, even if technically deficient, is sufficient to show a prior adjudication of dependency, and find that the court's denial of the requested continuance, under the facts of this case, was not an abuse of discretion.

*276 Appellant's 7-year old twin sons hitchhiked from Alabama to Florida with their stepfather. Their stepfather was subsequently arrested while in Florida, and his brother, who lives in Gainesville, responded to a call from the City of Alachua Police Department by taking the boys into his home temporarily while he tried to contact the mother. The boys' mother finally was located in Alabama, and although she stated she would come and get the boys, she neither came nor called with an explanation as to why she could not come. Unable to continue caring for the boys, the stepfather's brother surrendered the boys to the Department of Health and Rehabilitative Services (Department or HRS) approximately two weeks after the stepfather's arrest.

A delinquency petition was filed by the Department, and the mother was personally served with both the petition and a summons for the dependency hearing by an HRS protective services worker approximately a week before the scheduled dependency hearing. Although she told the protective services worker she would be present at the dependency hearing, the mother did not attend and has never offered any explanation for her absence. The court found her failure to appear tantamount to consent to dependency and entered a dependency order.

Subsequently, a series of court review hearings was scheduled, none of which the mother attended for more than a year after her sons were adjudicated dependent. When she finally appeared, the court appointed an attorney for her, and her attorney attended each judicial proceeding thereafter. To be charitable, the mother's attendance at these hearings was sporadic even after the appointment of her attorney. In fact, she had no contact with the court, the Department, or her attorney in the nine months before the hearing that resulted in the order on appeal, except for a single letter she sent her attorney prior to the termination of parental rights hearing indicating that she would attend.

From the time the boys first were surrendered to the Department, HRS made persistent efforts to locate and maintain contact with the mother and to assist her in obtaining services necessary to meet the Department's case plan tasks. In July of 1996, approximately 19 months after the initial adjudication of dependency, the Department filed an amended case plan seeking termination of the mother's parental rights. The first adjudicatory hearing scheduled on the Department's petition was postponed when the mother appeared and misled the court regarding the completion of her case plan tasks at the judicial review prior to commencement of the adjudicatory hearing. Despite being ordered to provide documentation of her claimed completion of these tasks, the mother has produced nothing, and the Department was never able to verify that she completed any of the case plan tasks. Accordingly, the adjudicatory hearing to determine whether her parental rights should be terminated was finally set for April 10, 1997.

Appellant was not present when the adjudicatory hearing commenced on April 10, 1997, but her attorney stated that he was ready to proceed in spite of her absence. He opened the hearing by contending that the proceeding could not go forward because the termination hearing was predicated in part upon a defective adjudication of dependency and thus the court could not meet the statutory requirement of finding there had been a prior adjudication of dependency. He claimed that the dependency order lacked both findings of fact and a statement of whether dependency was found by a preponderance or clear and convincing evidence. Relying upon this court's prior statement in Department of Health and Rehabilitative Services v. N.T., 670 So.2d 1147 (Fla. 1st DCA 1996), that nothing in section 39.467(3), Florida Statutes (1995), precludes termination of parental rights where the dependency order fails to set forth a factual basis for the dependency, *277 the court denied the motion in limine, and the hearing proceeded. We find no fault with the court's ruling on this point.

Appellant had notice of the prior dependency hearing but, consistent with her prior pattern of conduct, was not present at the hearing. She had 30 days following entry of the dependency order to appeal any alleged deficiencies, but she failed to do so. We find that final order is sufficient to show a prior adjudication of dependency for purposes of section 39.467(3).

Although the Department may rely on facts found in a dependency order by clear and convincing evidence in a termination of parental rights proceeding and avoid the necessity of proving dependency twice, either a failure of the dependency order to state the facts on which dependency was based or a failure of the dependency order to state the standard of proof on which the finding is based prevents the Department from relying on the dependency order for this purpose. See In the Interest of G.H. III, 617 So.2d 422 (Fla. 1st DCA 1993). In this case, however, we need not examine whether the order was deficient because the Department did not rely on the factual finding of the initial dependency determination, but rather presented evidence sufficient for a finding of dependency by clear and convincing evidence at the termination of parental rights adjudicatory hearing.

Appellant also alleges that the trial court abused its discretion by failing to grant a continuance to allow the natural mother to testify at the termination of parental rights hearing. At the outset of the hearing, as previously noted, appellant's attorney stated that he was prepared to proceed in the appellant's absence, and it was not until a break nearly two hours into the proceeding that appellant's counsel called his office for messages and learned that appellant had left a message on his answering machine after 5:00 p.m. on the previous evening stating that she was experiencing car trouble and would not be able to attend the hearing the next day. She left no information regarding where she was or how she could be reached, and she did not indicate when she thought she could be present to testify. Upon reconvening after the break, appellant's attorney asked for a continuance to allow his client to be present to testify. The court denied the motion based upon the fact that appellant did not contact the court, did not contact her attorney until after business hours, and did not follow up the day of the hearing to be sure that the message to her counsel had been received, and because she had, at best, a spotty history regarding contact with the court, the Department, and her children. On this record, we are not prepared to find that the trial court abused its discretion in denying the continuance.

We disagree with appellant that In re E.L., J.E.F.L. v. Department of Health and Rehabilitative Services, 700 So.2d 3 (Fla. 1st DCA 1997), controls this case. Although we held in E.L.

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Bluebook (online)
742 So. 2d 275, 1998 Fla. App. LEXIS 2867, 1998 WL 128888, Counsel Stack Legal Research, https://law.counselstack.com/opinion/db-v-dept-of-children-families-fladistctapp-1998.