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.
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