DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

B.A., the mother,

Appellant,

v.

DEPARTMENT OF CHILDREN AND FAMILIES and GUARDIAN AD 

LITEM,

Appellees.

No. 4D20-1335

[January 27, 2021]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Gregory M. Keyser, Judge; L.T. Case No. 50-2018-DP000029-XXXX-MB.

Antony P. Ryan, Director, and Paul O’Neil, Assistant Regional Counsel, 

Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, 

for appellant.

Andrew Feigenbaum of Children’s Legal Services, West Palm Beach, for 

appellee Department of Children and Families.

Thomasina F. Moore, Statewide Director of Appeals, and Samantha 

Costas Valley, Senior Attorney, Appellate Division, Florida Statewide 

Guardian ad Litem Office, Tallahassee, for appellee Guardian ad Litem.

ON APPELLEES’ MOTIONS FOR REHEARING, REHEARING 

EN BANC, CLARIFICATION, AND CERTIFICATION OF 

QUESTIONS OF GREAT PUBLIC IMPORTANCE

FORST, J.

After this court’s opinion issued on October 14, 2020, Appellees 

Department of Children and Families and Guardian ad Litem timely filed 

separate motions for rehearing, rehearing en banc, clarification, and 

certification of questions of great public importance. Appellees present 

arguments that should have been, but were not, presented in their answer 

briefs. Nonetheless, upon consideration of Appellees’ arguments and

Appellant’s responses, we grant the motions for rehearing and 
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clarification, and we deny the motions for rehearing en banc and 

certification. We thus withdraw the October 14, 2020 opinion and 

substitute this opinion in its place.

SUBSTITUTED OPINION

B.A. (“the Mother”) appeals from the trial court’s order terminating her 

parental rights as to her three-year-old daughter (“the Child”). She raises 

three issues on appeal. On the first two issues, we summarily affirm 

because the Mother was not deprived of due process and the trial court’s 

abandonment finding was not based on stale information. We write only

to address the Mother’s final argument that the recent amendment to 

section 39.811(5), Florida Statutes (2019), requires remand for a new 

hearing to determine whether circumstances have changed, necessitating 

a supplemental adjudicatory hearing and TPR order. Because this 

argument has not been preserved for appeal, and because the record 

unequivocally supports the trial court’s decision to terminate the Mother’s 

parental rights and clearly establishes that the Mother was not prejudiced 

by the delay in issuing the order, we affirm. 

Background

The Child was born on August 31, 2016. When the Child was 

approximately five months old, the Mother began to regularly bring the 

Child to L.D.—a caregiver who ran a childcare service. The Mother 

routinely left the Child with L.D. for extensive periods of time beyond those 

provided for in the childcare agreement. This persisted until November 

2017, when a man brought the Child to L.D.’s childcare center and asked 

if L.D. could take care of the Child. The man indicated that the Child had 

been left with him and that he was unable to provide adequate care. L.D. 

took the Child into her home and attempted to contact the Mother several 

times over the following months. However, her attempts were 

unsuccessful, and the Mother never reached out to L.D. As a result, L.D. 

contacted the Department of Children and Families (“the Department”),

and the Department initiated dependency proceedings. It also conducted 

a diligent search for the Mother but was unable to locate her or serve her 

with a case plan. The Mother’s absence continued for more than a year,

such that L.D. who had cared for the Child since November 2017,

expressed a willingness to adopt her. 

The Mother was not located until she was arrested on March 6, 2019. 

On March 27, 2019, the Mother appeared before the trial court for the first 

time with respect to the Child’s dependency case and was appointed 

counsel. In December 2019, at the conclusion of the bench trial on the 
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Department’s petition for the termination of the Mother’s parental rights, 

the trial court issued an oral ruling granting the petition. However, the 

trial court did not issue a written order of disposition until May 27, 2020.

That order and the delay in issuing it are the subject of the Mother’s 

appeal.

Analysis

Competent substantial evidence supports the trial court’s decision to 

terminate the Mother’s parental rights based on her failure to comply with 

her case plan and abandonment of the Child. Our focus in this opinion is 

the trial court’s failure to issue the written order of termination until five 

months after the TPR hearing.

During the 2019 legislative session, the Florida legislature added 

paragraph (5) to section 39.811, Florida Statutes. This new paragraph 

states: 

If the court terminates parental rights, the court shall enter 

a written order of disposition within 30 days after conclusion 

of the hearing briefly stating the facts upon which its decision 

to terminate the parental rights is made. 

§ 39.811(5), Fla. Stat. (2019) (emphasis added). 

This statutory provision became effective on October 1, 2019—prior to 

the completion of the termination of parental rights (“TPR”) bench trial.

See Ch. 2019-128, § 12, Laws of Fla. In response to this statutory change, 

the Florida Supreme Court amended Florida Rule of Juvenile Procedure 

8.825(j)(1)(A) to state: 

If the court finds after all of the evidence has been 

presented that the elements and one of the grounds for 

termination of parental rights have been established by clear 

and convincing evidence, the court shall enter a written order 

terminating parental rights and proceed with dispositional 

alternatives as provided by law within 30 days after 

conclusion of the adjudicatory hearing. 

Fla. R. Juv. P. 8.525(j)(1)(A) (2019) (language added by the amendment is 

underlined); see also In re Amendments to Fla. Rules of Juvenile 

Procedure—2019 Fast-track Report, 286 So. 3d 82, 94 (Fla. 2019). 
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The “adjudicatory hearing” referenced by this rule is the TPR hearing. 

See Fla. R. Juv. P. 8.525(a) (2019) (“The adjudicatory hearing shall be 

conducted by the judge without a jury using the rules of evidence for civil 

cases. At this hearing the court shall determine whether the elements 

required by law for termination of parental rights have been established by 

clear and convincing evidence.”) (emphasis added).

In K.G. v. Department of Children & Families, 279 So. 3d 1228 (Fla. 4th 

DCA 2019), we noted that:

[w]hile an excessive delay between a non-jury trial and the 

entry of an order of disposition may require reversal, a delayed 

ruling does not, standing alone, justify setting aside the final 

judgment. To reverse, there must be a combination of delay 

plus an indication that something is seriously amiss on the 

merits.

Id. at 1230 (internal citations and quotation marks omitted). Although 

K.G. was decided after the amendment to section 39.811, the opinion was 

issued before the effective date of the amended statute. We acknowledged 

this change, stating “the legislature has weighed in on an appropriate time 

within which to issue an order of disposition in a TPR case.” Id. This new 

provision was in effect and applicable to the instant case. 

Here, it is undisputed that the trial court did not issue its order 

terminating parental rights nor the order proceeding with dispositional 

alternatives within thirty days after the conclusion of the adjudicatory 

hearing. This raises a question as to the validity of the written order and 

what action, if any, an appellate court should take when the trial court’s 

noncompliance with section 39.811(5) is presented on appeal.

“If a court is to wait so long to issue a final judgment in a termination 

of parental rights case, the court may well need to hold an additional 

hearing to determine what has transpired in the child’s life before entering 

the ultimate order affecting the child’s future.” A.D. v. Dep’t of Children & 

Families, 273 So. 3d 1016, 1020 (Fla. 4th DCA 2019). The amendment to 

section 39.811 validates the concern expressed in A.D. There is a 

mechanism, however, for requesting this “additional hearing”: the timely 

filing of a motion for rehearing. As recently discussed by our sister court, 

“where an error by the [trial] court appears for the first time on the face of 

a final order, a party must alert the court of the error via a motion for 

rehearing or some other appropriate motion in order to preserve it for 

appeal.” B.T. v. Dep’t of Children & Families, 300 So. 3d 1273, 1279 (Fla. 

1st DCA 2020) (alteration in original) (quoting Smith v. Smith, 273 So. 3d 
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1168, 1171 (Fla. 1st DCA 2019). B.T. added that “[t]his rule exists for good 

reason. . . . It ensures ‘that the trial court has an opportunity to correct 

an error at the earliest opportunity, when the court is still in a position to 

recall the basis of its ruling.’” Id. at 1280 (quoting Eaton v. Eaton, 293 So. 

3d 567, 568 (Fla. 1st DCA 2020)). 

Here, a motion for rehearing filed within ten days of the entry of the 

court’s written order would have provided the Mother an opportunity to 

argue that “there exists new and material evidence, which, if introduced 

at the hearing would probably have changed the court’s decision and could 

not, with reasonable diligence, have been discovered before and produced 

at the hearing.” Fla. R. Juv. P. 8.265(a)(4) & (b)(1) (2019). In her initial 

brief, the Mother argued that the delay in entering the TPR order resulted 

in an order “based on stale information, not current circumstances.” 

However, rather than merely making a broad statement in an appeal, she 

should have sought to present and “flesh out” these arguments in a motion 

for rehearing. As it stands, the Mother’s requested relief (remand) runs 

counter to the emphasis on an expeditious process. See, e.g., § 39.0136(1), 

Fla. Stat. (2019) (“The Legislature finds that time is of the essence for 

establishing permanency for a child in the dependency system.”); C.M. v. 

Dep’t of Children & Family Servs., 854 So. 2d 777, 779 (Fla. 4th DCA 2003) 

(“[C]ourts are compelled to expedite proceedings to prevent children from 

languishing in the foster care system. . . . Achieving permanent stability 

in the child’s life is the paramount concern of the judicial process.”).

The Mother failed to ask the trial court to consider “changed 

circumstances” and reconsider its termination order. As the Mother’s rule 

8.525(j)(1)(A) challenge was not preserved, our review is limited to

determining if the Mother’s appeal establishes “fundamental error.” See, 

e.g., Jackson v. State, 983 So. 2d 562, 574 (Fla. 2008) (“[A]n unpreserved 

error may be considered on appeal only if the error is fundamental.”); 

Stalker v. State, 223 So. 3d 282, 283 (Fla. 4th DCA 2017) (“[Defendant] is 

limited to arguing fundamental error because the alleged error he 

complains of was not preserved.”). However, “[t]he doctrine of fundamental 

error should be applied only in rare cases where a jurisdictional error 

appears or where the interests of justice present a compelling demand for 

its application.” Smith v. State, 521 So. 2d 106, 108 (Fla. 1988). The 

Mother presented no evidence in her appeal that this is such a “rare case.” 

Her only explanation as to the “changed circumstances” is that she is no 

longer incarcerated and has attended judicial review hearings during the 

five-month period between the TPR hearing and the issuance of the final 

order. The latter claim is not supported by the record. We put aside the 

issue as to whether a trial court’s noncompliance with section 39.811(5) 

can ever constitute “fundamental error,” though noting, again, that the 
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rules of juvenile procedure already provide an opportunity to bring 

“changed circumstances” to the attention of the trial court. Thus, in the 

instant case, as in C.M., we conclude that “[w]e do not deem the error in 

this case to be fundamental and capable of being raised by the mother for 

the first time on appeal.” 854 So. 2d at 780 (emphasis omitted).

Conclusion

Even though the final order of disposition was not issued in a timely 

manner, we find that the record does not support a remand for further 

proceedings. As such, we affirm the decision of the trial court terminating 

the Mother’s parental rights. 

Affirmed.

CIKLIN and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.