IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA 

January 22, 2016 

In the Interest of S.M. and M.M., children. ) 

 ) 

 ) 

R.W.M., ) 

 ) Case Nos. 2D14-5630 

Appellant, ) 2D15-2443 

 ) 

v. ) 

 ) CONSOLIDATED 

DEPARTMENT OF CHILDREN ) 

AND FAMILIES and GUARDIAN AD ) 

LITEM PROGRAM, ) 

 ) 

Appellees. ) 

 ) 

Upon consideration of the motion for rehearing and clarification filed by 

Appellee, Department of Children and Families, on January 4, 2016, it is 

ORDERED that Appellee's motion for rehearing and clarification is 

granted. This court's opinion dated December 18, 2015, is withdrawn, and the attached 

opinion is substituted therefor. No further motions for rehearing will be entertained. 

I HEREBY CERTIFY THE FOREGOING IS A 

TRUE COPY OF THE ORIGINAL COURT ORDER. 

MARY ELIZABETH KUENZEL, CLERK
 IN THE DISTRICT COURT OF APPEAL 

 OF FLORIDA 

 SECOND DISTRICT 

In the Interest of S.M. and M.M., children. ) 

 ) 

 ) 

R.W.M., ) 

 ) Case Nos. 2D14-5630 

Appellant, ) 2D15-2443 

 ) 

v. ) 

 ) CONSOLIDATED 

DEPARTMENT OF CHILDREN ) 

AND FAMILIES and GUARDIAN AD ) 

LITEM PROGRAM, ) 

 ) 

Appellees. ) 

 ) 

Opinion filed January 22, 2016. 

Appeals from the Circuit Court for Manatee 

County; Scott Brownell, Judge. 

R.W.M., pro se. 

Stephanie C. Zimmerman, Statewide 

Director of Appeals, Bradenton, for 

Appellee Department of Children and 

Families. 

Laura Lawson, Tavares, for Appellee 

Guardian Ad Litem Program. 

 

BADALAMENTI, Judge. 

 In these consolidated appeals, R.W.M., the father, appeals from a final 

judgment terminating his parental rights and from an order denying his motion to set 

aside his implied consent to the termination of his parental rights derived from his failure 
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to appear at the adjudicatory hearing. The father contends that he demonstrated 

excusable neglect for his failure to appear at the adjudicatory hearing and thus his 

motion to set aside the implied consent to terminate his parental rights should have 

been granted. We reverse the order denying the motion to set aside the implied 

consent and the underlying final judgment of termination of parental rights. In so doing, 

we hold that the father met his burden of persuasion to set aside the implied consent to 

termination. We thus remand for a new adjudicatory hearing on the petition for 

termination of parental rights. 

 As background, after the father filed a notice of appeal in case number 

2D14-5630, we granted his attorney's motion to relinquish jurisdiction to hold a hearing 

on the father's motion to set aside his deemed consent under section 39.801(3)(d), 

Florida Statutes (2014). The father, who was incarcerated in various jails during the 

pendency of these proceedings, argued at the evidentiary hearing that he legitimately 

believed that he could appear for the final hearing by telephone. Accordingly, even 

though he was transported from the Pinellas County Jail to the Manatee County Jail so 

that he could attend the adjudicatory hearing in person, he refused transport to the 

courthouse but remained by the telephone at the jail, expecting to be telephoned when 

the hearing commenced. The anticipated phone call from the court never came. 

Meanwhile, at the courthouse, the father's attorney represented to the court that he had 

advised the father that he had the option to appear at the hearing, sign a surrender, or 

simply not show up—in which case he would be deemed to have consented. Without 

further inquiry and in the absence of a motion to continue by the father's attorney, the 

trial court deemed the father to have implicitly consented to the termination of his 
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parental rights by default under section 39.801(3)(d). The father subsequently filed a 

motion to set aside that implied consent by default. 

 At the evidentiary hearing on the father's motion to set aside the implied 

consent by default for failure to appear, the father testified that he did not appear at the 

hearing because he had been informed by his attorney and the court that he would have 

the option to appear by telephone if he were incarcerated at the time of the adjudicatory 

hearing. The trial court rejected the father's explanation for his failure to appear, 

determining he had failed to demonstrate excusable neglect. 

 Section 39.801(3)(d) states that the "failure of [a] parent to personally 

appear at the adjudicatory hearing shall constitute consent for termination of parental 

rights." That being said, it is axiomatic that "Florida public policy favors an adjudication 

on the merits over the entry of a default, and thus a properly filed motion to vacate a 

consent by default should be liberally granted." T.L.D. v. Dep't of Children & Family 

Servs., 883 So. 2d 910, 915 (Fla. 2d DCA 2004) (citing R.H. v. Dep't of Children & 

Family Servs., 860 So. 2d 986, 988 (Fla. 3d DCA 2003)). Termination of parental 

rights–which are fundamental rights–by consent implicitly derived from a parent's failure 

to appear at an adjudicatory hearing is "disfavored." See B.D. v. Dep't of Children & 

Families, 46 So. 3d 650, 650 (Fla. 5th DCA 2010). Where the record reflects that the 

parent was making a reasonable effort to appear at the scheduled hearing, the trial 

court should either grant a short continuance or permit the parent to appear by 

telephone. Id. (citing D.M. v. Dep't of Children & Families, 921 So. 2d 737 (Fla. 5th 

DCA 2006); B.H. v. Dep't of Children & Families, 882 So. 2d 1099, 1100-01 (Fla. 4th 

DCA 2004)). 
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 A parent who moves to set aside a default bears the burden of

persuasion. See T.L.D., 883 So. 2d at 914. To set aside the default, the parent must 

" act with due diligence, demonstrate excusable neglect, and demonstrate the existence 

of a meritorious defense to the termination petition. " Dep't of Children & Family Servs. 

v. P.E., 14 So. 3d 228, 236 (Fla. 2009) (quoting E.W. v. Dep't of Children & Family 

Servs., 878 So. 2d 493, 496 (Fla. 3d DCA 2004)). 

 Here, there is no challenge to the father's diligence in moving to set aside 

his consent by default. Even more, the father has consistently asserted that he did not 

abandon his children. Instead, the father asserted that the mother kept the children 

away from him so that he could never provide support or forge a meaningful relationship 

with them despite his incarceration. These allegations, if demonstrated, could 

conceivably form the basis for a meritorious defense to the petition alleging that the 

father abandoned his children and that he was an incarcerated parent with a lengthy 

criminal history who had not provided for his children's care, well-being, or physical, 

mental, or emotional health. See § 39.806(1)(b), (d)(3), Fla. Stat. (2014). 

As to excusable neglect, a careful review of the record reveals that the trial court stated 

to the father at the advisory hearing that he would have the option to appear by 

telephone if he were incarcerated at the time of the adjudicatory hearing. The trial 

court, however, never telephoned the father, who was awaiting that call from the jail 

during the scheduled time of the adjudicatory hearing. It is clear on this record that the 

father met his burden of persuasion to set aside the consent implicitly derived from his 

failure to appear at the adjudicatory hearing. 
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 The trial court thus erred when it denied the father's motion to set aside 

his implied consent to the termination of his parental rights. Accordingly, we reverse the 

orders on appeal and remand for a new trial on the petition for termination of parental 

rights. On remand, the trial court shall appoint a different attorney to represent the 

father in the new trial on petition for termination of parental rights. 

ALTENBERND and LUCAS, JJ., Concur.