T.B. v. DCF

• Court: District Court of Appeal of Florida
• Decided: July 3, 2017
• Docket: 5D17-807
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

T.B., FATHER OF O.B., A CHILD,

Appellant,

v. Case No. 5D17-807

DEPARTMENT OF CHILDREN AND FAMILIES,

Appellee.

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Opinion filed July 7, 2017

On Appeal from the Circuit Court, for Seminole County, Melissa Souto, Judge.

Allan Campbell, Lake Mary, for Appellant.

Kelley Schaeffer, Appellate Counsel, Children's Legal Services, Bradenton, for Appellee.

Rocco Joseph Carbone, III, and Wendie Michelle Cooper, Appellate Counsel, Sanford, for Guardian ad Litem Program.

PER CURIAM.

The father appeals from an order modifying permanency. The order was entered

at a hearing in his absence. We reach only one issue and reverse. The parents consented to a finding of dependency, and the trial court set a case

plan for reunification. The parents substantially complied with the case plan, the trial court

reunified as to both parents, and set a hearing for six months later as required by section

39.701(1)(b), Florida Statutes (2016). Shortly after reunification, but before the hearing,

the father was arrested for burglary and larceny.

At the judicial review hearing, the trial court terminated both supervision and

jurisdiction as recommended by the Department of Children and Families ("DCF") and

the Guardian Ad Litem ("GAL"), but also modified permanency as to the father. In so

doing, the trial court ordered that the father's visitation would be at the discretion of the

mother. The father's attorney objected to the order, arguing that the father was

incarcerated and had a right to be present. The trial court disagreed and entered the

order.

The trial court erred when it modified permanency as to the father during his

involuntary absence. This Court has held that "[t]he procedures utilized in a dependency

action must comport with due process principles." A.L. v. Dep't of Child. & Fams., 53 So.

3d 324, 328 (Fla. 5th DCA 2010). We believe that the father's right to due process

includes his right to attend the hearing in this case. Importantly, no record evidence in

this case indicates that the father was intentionally absent or otherwise waived his right

to appear. Rather, his failure to attend the hearing was attributable to his incarceration,

which can be remedied by the entry of an order directing that the father be transported to

attend the hearing.

REVERSED AND REMANDED.

SAWAYA, LAMBERT and EISNAUGLE, JJ., concur.