advisory hearing in Florida

2009That 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. 5 Although in J.B. we found that the one day’s notice of hearing given the father was constitutionally inadequate, we expressly did not hold that “a consent by default can never be entered.” Id. at 1066-67 .

2009That 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. [5] Although in J.B. we *235 found that the one day's notice of hearing given the father was constitutionally inadequate, we expressly did not hold that "a consent by default can never be entered." Id. at 1066-67 .

2012Importantly, section 39.801(3)(d) 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 rights by the person given notice.” “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.” B.H. v. Dep’t of Children & Families, 882

2012Importantly, section 39.801(3)(d) 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 rights by the person given notice.” “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.” B.H. v. Dep’t of Children & Families, 882

2011In addition, only one advisory hearing is necessary because the “purpose of an advisory hearing is to advise the parents of their right to counsel, appoint counsel if necessary, determine whether the parents will consent to the termination, appoint a guardian ad litem for the children, and set a date for the adjudicatory hearing.” In re E.L., 732 So.2d 37, 39 (Fla. 2d DCA 1999).

2001Second, the court found that the mother “should not have been defaulted for failing to ‘respond or appear’ at the advisory hearing” because “[s]he did appear, albeit through her attorney.” Id. at 39 .

2009We reject DCF’s argument that In re W.C., 797 So.2d 1273 (Fla. 1st DCA 2001) excuses the presentation of evidence following a respondent parent’s non-appearance at the advisory hearing.

2008We reject DCF’s argument that In re W.C., 797 So.2d 1273 (Fla. 1st DCA 2001) excuses the presentation of evidence following a respondent parent’s non-appearance at the advisory hearing.

2003In R.P. v. Department of Children and Families, 835 So.2d 1212 (Fla. 4th DCA 2003), a petition was filed seeking the termination of parental rights and the matter was set for an advisory hearing.

2003In R.P. v. Department of Children and Families, 835 So.2d 1212 (Fla. 4th DCA 2003), a petition was filed seeking the termination of parental rights and the matter was set for an advisory hearing.

2002See M.E. v. Florida Dep't of Children & Family Servs., 728 So.2d 367, 368 (Fla. 3d DCA 1999); see also J.B., 768 So.2d at 1065-67 (stating that twenty-four hours' notice of advisory hearing is insufficient to satisfy minimum due process requirements).

2002The Department argues that notice was sufficient because J.M.'s attorney was timely served with notice of the hearing, relying on M.E. v. Florida Department of Children and Family, 728 So.2d 367 (Fla. 3d DCA 1999).

1998See In Interest of D.B., 385 So.2d 83 (Fla.1980).

1998See In Interest of D.B., 385 So.2d 83 (Fla.1980).

2018See, e.g., Rigterink v. State, 66 So. 3d 866, 897 (Fla. 2011); Globe v. State, 877 So. 2d 663, 673-74 (Fla. 2004); Card - 10 - v. State, 803 So. 2d 613, 628 (Fla. 2001); Sireci v. State, 773 So. 2d 34 , 40 nn.9 & 11 (Fla. 2000); Teffeteller v. Dugger, 734 So. 2d 1009, 1026 (Fla. 1999); Brown v. State, 721 So. 2d 274, 283 (Fla. 1998); Burns v. State, 699 So. 2d 646, 655 (Fla. 1997); Johnson v. State, 660 So. 2d 637, 647 (Fla. 1995).

2018See, e.g. , Rigterink v. State , 66 So.3d 866 , 897 (Fla. 2011) ; Globe v. State , 877 So.2d 663 , 673-74 (Fla. 2004) ; Card v. State , 803 So.2d 613 , 628 (Fla. 2001) ; Sireci v. State , 773 So.2d 34 , 40 nn.9 & 11 (Fla. 2000) ; Teffeteller v. Dugger , 734 So.2d 1009 , 1026 (Fla. 1999) ; Brown v. State , 721 So.2d 274 , 283 (Fla. 1998) ; Burns v. State , 699 So.2d 646 , 655 (Fla. 1997) ; Johnson v. State , 660 So.2d 637 , 647 (Fla. 1995).

2009The predecessor provision addressed only failure to appear at the advisory hearing: “If the person served with notice under this section fails to respond or appear at the advisory hearing, the failure to respond or appear shall constitute consent for termination of parental rights by the person given notice.” § 39.462(1)(d), Fla. Stat. (1995); see In re A.L., 711 So.2d 600, 601 (Fla. 2d DCA 1998) (reversing entry of default in termination proceeding because rules of civil procedure did not apply and there was no statutory authority for default for failure to appear at adjudicatory hearing — on

2009The court addressed the second issue, discussed above, in the event the mother again failed to appear at the new hearing. [5] The predecessor provision addressed only failure to appear at the advisory hearing: "If the person served with notice under this section fails to respond or appear at the advisory hearing, the failure to respond or appear shall constitute consent for termination of parental rights by the person given notice." § 39.462(1)(d), Fla. Stat. (1995); see In re A.L., 711 So.2d 600, 601 (Fla. 2d DCA 1998) (reversing entry of default in termination proceeding because rules of civ

2008However, “courts should ordinarily refrain from determining a termination of parental rights by default where an absent parent is making reasonable effort to be present at the scheduled hearing and is delayed by forces or circumstances beyond the parent’s control.” R.P. v. Dep’t of Children & Families, 835 So.2d 1212, 1214 (Fla. 4th DCA 2003); see also V.M. v. Dep’t of Children & Family Servs., 941 So.2d 1255, 1256 (Fla. 2d DCA 2006) (citing R.P.); B.H. v. Dep’t of Children & Families, 882 So.2d 1099, 1100-01 (Fla. 4th DCA 2004) (“courts have made a distinction between parents who fail to appe

2008However, "courts should ordinarily refrain from determining a termination of parental rights by default where an absent parent is making reasonable effort to be present at the scheduled hearing and is delayed by forces or circumstances beyond the parent's control." R.P. v. Dep't of Children & Families, 835 So.2d 1212, 1214 (Fla. 4th DCA 2003); see also V.M. v. Dep't of Children & Family Servs., 941 So.2d 1255, 1256 (Fla. 2d DCA 2006) (citing R.P. ); B.H. v. Dep't of Children & Families, 882 So.2d 1099, 1100-01 (Fla. 4th DCA 2004) ("courts have made a distinction between parents who fail to app

2006See In re A.N.D., 883 So.2d 910 , 913 n. 2 (Fla. 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

2004See S.C. v. Dep't of Children & Families, 877 So.2d 831, 832 (Fla. 4th DCA 2004).

2000See, e.g., Dawson v. Saada, 608 So.2d 806, 808 (Fla. 1992); Department of Law Enforcement v. Real Property, 588 So.2d 957, 959-60 (holding statute constitutional provided it is applied consistent with minimum due process requirements).

1999But the statute must be construed to require constitutionally reasonable notice. [3] See generally, e.g., Dawson v. Saada, 608 So.2d 806, 808 (Fla.1992); Real Property, 588 So.2d at 959-60 (upholding statute as "facially constitutional provided that it is applied consistent with the minimal due process requirements of the Florida Constitution").

2000See, e.g., Dawson v. Saada, 608 So.2d 806, 808 (Fla. 1992); Department of Law Enforcement v. Real Property, 588 So.2d 957, 959-60 (holding statute constitutional provided it is applied consistent with minimum due process requirements).

1999But the statute must be construed to require constitutionally reasonable notice. [3] See generally, e.g., Dawson v. Saada, 608 So.2d 806, 808 (Fla.1992); Real Property, 588 So.2d at 959-60 (upholding statute as "facially constitutional provided that it is applied consistent with the minimal due process requirements of the Florida Constitution").

2010In Justice Administrative Commission v. Berry, 5 So.3d 696 (Fla. 3d DCA 2009), we reversed a circuit court order appointing counsel for a parent who failed to appear for an advisory hearing (thereby deemed to consent to termination of the parent's parental rights).

2010In Justice Administrative Commission v. Berry, 5 So.3d 696 (Fla. 3d DCA 2009), we reversed a circuit court order appointing counsel for a parent who failed to appear for an advisory hearing (thereby deemed to consent to termination of the parent’s parental rights).

2018See, e.g., Rigterink v. State, 66 So. 3d 866, 897 (Fla. 2011); Globe v. State, 877 So. 2d 663, 673-74 (Fla. 2004); Card - 10 - v. State, 803 So. 2d 613, 628 (Fla. 2001); Sireci v. State, 773 So. 2d 34 , 40 nn.9 & 11 (Fla. 2000); Teffeteller v. Dugger, 734 So. 2d 1009, 1026 (Fla. 1999); Brown v. State, 721 So. 2d 274, 283 (Fla. 1998); Burns v. State, 699 So. 2d 646, 655 (Fla. 1997); Johnson v. State, 660 So. 2d 637, 647 (Fla. 1995).

2018See, e.g. , Rigterink v. State , 66 So.3d 866 , 897 (Fla. 2011) ; Globe v. State , 877 So.2d 663 , 673-74 (Fla. 2004) ; Card v. State , 803 So.2d 613 , 628 (Fla. 2001) ; Sireci v. State , 773 So.2d 34 , 40 nn.9 & 11 (Fla. 2000) ; Teffeteller v. Dugger , 734 So.2d 1009 , 1026 (Fla. 1999) ; Brown v. State , 721 So.2d 274 , 283 (Fla. 1998) ; Burns v. State , 699 So.2d 646 , 655 (Fla. 1997) ; Johnson v. State , 660 So.2d 637 , 647 (Fla. 1995).

2018See, e.g., Rigterink v. State, 66 So. 3d 866, 897 (Fla. 2011); Globe v. State, 877 So. 2d 663, 673-74 (Fla. 2004); Card - 10 - v. State, 803 So. 2d 613, 628 (Fla. 2001); Sireci v. State, 773 So. 2d 34 , 40 nn.9 & 11 (Fla. 2000); Teffeteller v. Dugger, 734 So. 2d 1009, 1026 (Fla. 1999); Brown v. State, 721 So. 2d 274, 283 (Fla. 1998); Burns v. State, 699 So. 2d 646, 655 (Fla. 1997); Johnson v. State, 660 So. 2d 637, 647 (Fla. 1995).

2018See, e.g. , Rigterink v. State , 66 So.3d 866 , 897 (Fla. 2011) ; Globe v. State , 877 So.2d 663 , 673-74 (Fla. 2004) ; Card v. State , 803 So.2d 613 , 628 (Fla. 2001) ; Sireci v. State , 773 So.2d 34 , 40 nn.9 & 11 (Fla. 2000) ; Teffeteller v. Dugger , 734 So.2d 1009 , 1026 (Fla. 1999) ; Brown v. State , 721 So.2d 274 , 283 (Fla. 1998) ; Burns v. State , 699 So.2d 646 , 655 (Fla. 1997) ; Johnson v. State , 660 So.2d 637 , 647 (Fla. 1995).

2018See, e.g., Rigterink v. State, 66 So. 3d 866, 897 (Fla. 2011); Globe v. State, 877 So. 2d 663, 673-74 (Fla. 2004); Card - 10 - v. State, 803 So. 2d 613, 628 (Fla. 2001); Sireci v. State, 773 So. 2d 34 , 40 nn.9 & 11 (Fla. 2000); Teffeteller v. Dugger, 734 So. 2d 1009, 1026 (Fla. 1999); Brown v. State, 721 So. 2d 274, 283 (Fla. 1998); Burns v. State, 699 So. 2d 646, 655 (Fla. 1997); Johnson v. State, 660 So. 2d 637, 647 (Fla. 1995).

2018See, e.g. , Rigterink v. State , 66 So.3d 866 , 897 (Fla. 2011) ; Globe v. State , 877 So.2d 663 , 673-74 (Fla. 2004) ; Card v. State , 803 So.2d 613 , 628 (Fla. 2001) ; Sireci v. State , 773 So.2d 34 , 40 nn.9 & 11 (Fla. 2000) ; Teffeteller v. Dugger , 734 So.2d 1009 , 1026 (Fla. 1999) ; Brown v. State , 721 So.2d 274 , 283 (Fla. 1998) ; Burns v. State , 699 So.2d 646 , 655 (Fla. 1997) ; Johnson v. State , 660 So.2d 637 , 647 (Fla. 1995).

2018See, e.g., Rigterink v. State, 66 So. 3d 866, 897 (Fla. 2011); Globe v. State, 877 So. 2d 663, 673-74 (Fla. 2004); Card - 10 - v. State, 803 So. 2d 613, 628 (Fla. 2001); Sireci v. State, 773 So. 2d 34 , 40 nn.9 & 11 (Fla. 2000); Teffeteller v. Dugger, 734 So. 2d 1009, 1026 (Fla. 1999); Brown v. State, 721 So. 2d 274, 283 (Fla. 1998); Burns v. State, 699 So. 2d 646, 655 (Fla. 1997); Johnson v. State, 660 So. 2d 637, 647 (Fla. 1995).

2018See, e.g. , Rigterink v. State , 66 So.3d 866 , 897 (Fla. 2011) ; Globe v. State , 877 So.2d 663 , 673-74 (Fla. 2004) ; Card v. State , 803 So.2d 613 , 628 (Fla. 2001) ; Sireci v. State , 773 So.2d 34 , 40 nn.9 & 11 (Fla. 2000) ; Teffeteller v. Dugger , 734 So.2d 1009 , 1026 (Fla. 1999) ; Brown v. State , 721 So.2d 274 , 283 (Fla. 1998) ; Burns v. State , 699 So.2d 646 , 655 (Fla. 1997) ; Johnson v. State , 660 So.2d 637 , 647 (Fla. 1995).

2018See, e.g., Rigterink v. State, 66 So. 3d 866, 897 (Fla. 2011); Globe v. State, 877 So. 2d 663, 673-74 (Fla. 2004); Card - 10 - v. State, 803 So. 2d 613, 628 (Fla. 2001); Sireci v. State, 773 So. 2d 34 , 40 nn.9 & 11 (Fla. 2000); Teffeteller v. Dugger, 734 So. 2d 1009, 1026 (Fla. 1999); Brown v. State, 721 So. 2d 274, 283 (Fla. 1998); Burns v. State, 699 So. 2d 646, 655 (Fla. 1997); Johnson v. State, 660 So. 2d 637, 647 (Fla. 1995).

2018See, e.g. , Rigterink v. State , 66 So.3d 866 , 897 (Fla. 2011) ; Globe v. State , 877 So.2d 663 , 673-74 (Fla. 2004) ; Card v. State , 803 So.2d 613 , 628 (Fla. 2001) ; Sireci v. State , 773 So.2d 34 , 40 nn.9 & 11 (Fla. 2000) ; Teffeteller v. Dugger , 734 So.2d 1009 , 1026 (Fla. 1999) ; Brown v. State , 721 So.2d 274 , 283 (Fla. 1998) ; Burns v. State , 699 So.2d 646 , 655 (Fla. 1997) ; Johnson v. State , 660 So.2d 637 , 647 (Fla. 1995).

2018See, e.g., Rigterink v. State, 66 So. 3d 866, 897 (Fla. 2011); Globe v. State, 877 So. 2d 663, 673-74 (Fla. 2004); Card - 10 - v. State, 803 So. 2d 613, 628 (Fla. 2001); Sireci v. State, 773 So. 2d 34 , 40 nn.9 & 11 (Fla. 2000); Teffeteller v. Dugger, 734 So. 2d 1009, 1026 (Fla. 1999); Brown v. State, 721 So. 2d 274, 283 (Fla. 1998); Burns v. State, 699 So. 2d 646, 655 (Fla. 1997); Johnson v. State, 660 So. 2d 637, 647 (Fla. 1995).

2018See, e.g. , Rigterink v. State , 66 So.3d 866 , 897 (Fla. 2011) ; Globe v. State , 877 So.2d 663 , 673-74 (Fla. 2004) ; Card v. State , 803 So.2d 613 , 628 (Fla. 2001) ; Sireci v. State , 773 So.2d 34 , 40 nn.9 & 11 (Fla. 2000) ; Teffeteller v. Dugger , 734 So.2d 1009 , 1026 (Fla. 1999) ; Brown v. State , 721 So.2d 274 , 283 (Fla. 1998) ; Burns v. State , 699 So.2d 646 , 655 (Fla. 1997) ; Johnson v. State , 660 So.2d 637 , 647 (Fla. 1995).

2025See § 39.801(3)(e), Fla. Stat. (2024) (“If a parent appears for the advisory hearing and the court orders that parent to appear at the adjudicatory hearing for the petition for termination of parental rights, stating the date, time, and location of the hearing and, if applicable, instructions for appearance through audio-video communication technology, then failure of that parent to appear, either physically or, by agreement of the parties or at the discretion of the court, through audio-video communication technology, at the adjudicatory hearing constitutes consent for termination of parental

2025If reasonable [people] could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.”) (modernized) (citation omitted); see also E.S. v. Dep’t of Children and Family, 878 So. 2d 493, 496 (Fla. 3d DCA 2 2004) (requiring, in the context of a motion to vacate a default entered upon a constructive consent to termination of parental rights, that “the party seeking to vacate the default act with due diligence, demonstrate excusable neglect, and demonstrate the existence of a meritorious defense to the termination petition.

2025See § 39.801(3)(e), Fla. Stat. (2024) (“If a parent appears for the advisory hearing and the court orders that parent to appear at the adjudicatory hearing for the petition for termination of parental rights, stating the date, time, and location of the hearing and, if applicable, instructions for appearance through audio-video communication technology, then failure of that parent to appear, either physically or, by agreement of the parties or at the discretion of the court, through audio-video communication technology, at the adjudicatory hearing constitutes consent for termination of parental

2013See F.M. v. State Dep’t of Children & Families, 95 So.3d 378 (Fla. 3d DCA 2012) (§ 39.801(3)(a) requires that “prior to termination of a parent’s parental rights, the court must ‘provide notice of the date, time and place of the advisory hearing for the petition to terminate parental rights’ ”).

2010See Miranda, 384 U.S. at 477 , 86 S.Ct. 1602 ; Salvo, 133 F.3d at 949 .

2010See Miranda, 384 U.S. at 477 , 86 S.Ct. 1602 ; Salvo, 133 F.3d at 949 .