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 clarificatio n filed by Appellee, Department of Children and Families, on January 4, 20 16, it is ORDERED that Appellee's motion for rehearing and clarification is granted. This court's opinion dated December 18, 2015, is with drawn, and the attached opinion is substituted therefor. No further motions for rehear ing will be entertained.

I HEREBY CERTIFY T HE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.

MARY ELIZABETH KUENZEL, CLERKIN 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 fr om a final judgment terminating his parental rights and from an order deny ing his motion to set aside his implied consent to the termination of his parental ri ghts derived from his failure- 2 - to appear at the adjudicatory hearing. The father contends tha t 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 parent al rights should have been granted. We reverse the order denying the motion to set a side the implied consent and the underlying final judgment of termination of par ental rights. In so doing, we hold that the father met his burden of persuasion to set asi de 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 c ase number 2D14-5630, we granted his attorney's motion to relinquish juris diction to hold a hearing

on the father's motion to set aside his deemed consent under se ction 39.801(3)(d), Florida Statutes (2014). The father, who was incarcerated in v arious jails during the pendency of these proceedings, argued at the evidentiary hearin g that he legitimately believed that he could appear for the final hearing by telephon e. 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 ref used 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 cou rt 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 hear ing, sign a surrender, or simply not show up—in which case he would be deemed to have con sented. Without further inquiry and in the absence of a motion to continue by t he father's attorney, the trial court deemed the father to have implicitly consented to t he termination of his- 3 - parental rights by default under section 39.801(3)(d). The fat her subsequently filed a motion to set aside that implied consent by default. At the evidentiary hearing on the father's motion to set asid e 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 co urt that he would have the option to appear by telephone if he were incarcerated at th e 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 t o 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)). Termin ation of parental rights–which are fundamental rights–by consent implicitly deriv ed 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 re cord reflects that the parent was making a reasonable effort to appear at the schedule d hearing, the trial court should either grant a s hort continuance or permit the par ent to appear by telephone. Id. (citing D.M. v. Dep't of Children & Families, 9 21 So. 2d 737 (Fla. 5th DCA 2006); B.H. v. Dep't of Children & Families, 882 So. 2d 109 9, 1100-01 (Fla. 4th DCA 2004)).- 4 - 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 d efault, the parent must " act with due diligence, demonstrate excusable neglect, and de monstrate 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 movi ng 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 mo ther 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 dem onstrated, could conceivably form the basis for a meritorious defense to the pet ition alleging that the father abandoned his children and that he was an incarcerated p arent 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 op tion to appear by telephone if he were incarcerated at the time of the adjudicato ry hearing. The trial court, however, never telephoned the father, who was awaiting t hat call from the jail during the scheduled time of the adjudicatory hearing. It is c lear on this record that the father met his burden of persuasion to set aside the consent im plicitly derived from his failure to appear at the adjudicatory hearing.- 5 - 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 a ttorney to represent the father in the new trial on petition for termination of parental rights.

ALTENBERND and LUCAS, JJ., Concur.