>> LAST CASE ON THE COURT'S

AGENDA, FLORIDA DEPARTMENT OF

CHILDREN AND FAMILIES VERSUS

P.E.

AGAIN I WOULD ASK THE PARTIES

TO WATCH THEIR TIMES SO THAT WE

CAN KEEP THIS WITHIN SOME

REASONABLE TIME LIMITS.

>> YES, YOUR HONOR.

MERCEDES SCOPPETTA FOR THE

GUARDIAN AD LITEM PROGRAM.

MAY IT PLEASE THE COURT.

THE PROGRAM WOULD ASSERT THAT

ADOPTING THE FRAMEWORK OF THE

THIRD AND THE FIFTH DISTRICT

COURT OF APPEALS PROMOTES

PERMANENCY FOR CHILDREN.

>> SO WHAT WOULD HAVE HAPPENED

IN THIS CASE?

THAT IS, THE MOTHER, YOU KNOW,

THE MOTHER DOESN'T SHOW UP AT

THE ADJUDICATORY HEARING.

BY THE WAY NEITHER DID THE

GUARDIAN AD LITEM SHOW UP.

SHE WAS SICK.

SO, YOU KNOW, ANOTHER JUDGE OF

MIGHT HAVE JUST PUT THIS

HEARING OFF 30 DAYS AND THE

MOTHER AND GUARDIAN AD LITEM

COULD BE THERE.

BUT LET'S JUST SAY THERE IS NO

ONE CHALLENGING THE ACTUAL

ENTRY OF THE DEFAULT.

WHAT THEN WOULD HAVE HAPPENED

DIFFERENTLY UNDER YOUR SCENARIO

AT THE SEPTEMBER 21st, 2007

HEARING?

>> THAT WAS THE MOTION FOR --

>> AT THE OTHER HEARING OF THE

PERMANENCY HEARING, SEPTEMBER

25th HEARING, WHERE THE JUDGE

SAYS HE WAS HOLDING A

PERMANENCY HEARING AT WHICH

TIME THE GAL TESTIFIED?

>> IF I COULD GO BACKWARDS A

LITTLE BIT.

AT AUGUST 20th HEARING WHERE

THE MOTHER DIDN'T APPEAR THE

COURT COULD HAVE MOVED FORWARD

TO HEAR EVIDENCE BECAUSE THEY

WOULD HAVE BEEN TRIAL READY

THAT DAY.

EVIDENCE OF AT LEAST ONE GROUND

FOR TERMINATION OF PARENTAL

RIGHTS.

UNDER THE THIRD AND FIFTH

DISTRICT FRAMEWORK, THAT IS

WHAT WOULD HAVE HAPPENED.

BECAUSE THE GUARDIAN AD LITEM

HAD BEEN SICK OR I THOUGHT

INJURED OVER THE WEEKEND THEY

COULD HAVE ESSENTIALLY AS

SECONDARY ELEMENT COULD HAVE

BEEN LIKE CONTINUATION OF TRIAL

AND WOULD HAVE HELD IT.

IN CASE THE JUDGE WANTED TO

HOLD IT AT THE BEGINNING OF

PERMANENCY HEARING.

>> AND AT THAT TIME, DOES THE

MOTHER GET TO CONTEST BOTH THE

BEST INTERESTS AND THE GROUNDS

FOR TERMINATION?

>> THE MOTHER, I THINK IT'S

UNCLEAR IN THE RECORD, YOUR

HONOR.

>> WHAT I'M ASKING YOU AS

REPRESENTATIVE OF GUARDIAN AD

LITEM HOW IS THIS HELPFUL FOR

THE CHILD?

HOW IS AND WHAT'S THE MEANING

THEN OF A DEFAULT IF THE MOTHER

CAN COME RIGHT BACK UP AT ANY

TIME, ANY TIME IT'S RESET AND

THEN GO AHEAD AND CHALLENGE THE

BOTH GROUNDS?

>> I THINK WHAT HAPPENS IS,

UNDER THE THIRD AND FIFTH

DISTRICT FRAMEWORK, YOU WOULD,

THE TRIAL COURT, IF A PARENT

DIDN'T APPEAR AT EITHER

ADVISORY OR ADJUDICATORY

HEARING, THE TRIAL COURT WOULD

THEN MOVE FORWARD AND YOU WOULD

HEAR EVIDENCE OF A GROUND FOR

TERMINATION AND EVIDENCE OF

WHAT WOULD BE BEST INTEREST OF

THE CHILD.

>> IS THAT WHAT IS NORMALLY

DONE?

BECAUSE I DID NOT GET THE

IMPRESSION FROM THIS RECORD

THAT NORMALLY, WHEN THERE'S A

DEFAULT, OR, CONSENT BECAUSE OF

NON-APPEARANCE, THEY GO ON TO

TAKE THE EVIDENCE ABOUT THE

GROUNDS?

IS THAT WHAT'S DONE?

>> YOUR HONOR, IN THE THIRD AND

FIFTH DISTRICTS, I'M FROM

MIAMI, AND THAT IS UNDER S.S.,

WHAT IT HAS DONE IN EACH CASE.

>> ALL THAT WOULD HAVE HAPPENED

HERE, YOU WENT BACK AND GAVE ME

ANOTHER HEARING.

I'M SAYING AT THE SEPTEMBER

25th HEARING WHERE THERE WAS A

PERMANENCY HEARING --

>> CORRECT.

>> -- GAL TESTIFIED TO BEST

INTEREST --

>> YES.

>> -- GAL, SOMEONE ELSE COULD

HAVE TESTIFIED FOR STATUTORY

GROUNDS?

>> CORRECT.

>> WHAT IS, FROM THE POINT OF

VIEW OF A GUARDIAN AD LITEM, IF

THE LEGISLATURE MEANT FOR THERE

TO BE A CONSENT BY DEFAULT OF

TERMINATION, WHICH TO ME MEANS

THAT THE GROUNDS FOR

TERMINATION HAVE BEEN MET,

OTHERWISE, IT ALMOST MEANS

NOTHING, WHAT, WHAT'S THE

GUARDIAN AD LITEM'S INTEREST IN

WHETHER THIS ADDITIONAL REALLY

UNCONTESTED TESTIMONY IS PUT IN

THE RECORD?

>> WE WOULD DISAGREE THAT THE

LEGISLATURE MEANT THAT CONSENT

BY NON-APPEARANCE TO BE A

GROUND OR BE TANTAMOUNT TO A

GROUND FOR TERMINATION.

>> CONSENT TO TERMINATION.

>> EXCUSE ME.

>> SAYS CONTENT TO --

>> CONSENT FOR TERMINATION OF

PARENTAL RIGHTS.

I THINK --

>> IN THIS CASE WAS THE

GUARDIAN AD LITEM IS SUPPORTING

TERMINATION OR OPPOSING

TERMINATION?

>> YES.

RECOMMENDING TERMINATION OF

PARENTAL RIGHTS.

>> WELL, LET ME STEP BACK FROM

THIS.

THIS CASE STRIKES ME AS A VERY

ODD BECAUSE IT SEEMS LIKE THAT

WHEN I LOOK AT THE BRIEFS, I

SEE THE FOCUS OF THE DISCUSSION

IS ABOUT AN ISSUE WHICH IS NOT

AT ISSUE IN THIS CASE.

THE ISSUE OF THE IMPACT OF THE

CATEGORIZATION OF ONE OF THESE

TERMINATIONS BY CONSENT BECAUSE

OF FAILURE TO APPEAR ON A

SUBSEQUENT TERMINATION WITH

RESPECT TO A SIBLING.

SO MUCH OF THE BRIEF FOCUSES

ON, IS THIS VOLUNTARY OR

INVOLUNTARY AND IMPLICATION

THAT HAS FOR THOSE KINDS OF

CASES.

THAT HAS NOT GOING TO DO WITH

THE DISPOSITION OF THIS CASE.

THAT'S NOT AN ISSUE WE HAVE TO

DETERMINE IN THIS CASE.

NOW, YOU'RE HERE ARGUING FOR A

FRAMEWORK OTHER, YOU'RE

SUPPORTING TERMINATION BUT YOU'RE

SAYING THAT YOU WANT US TO

REVERSE?

>> YES, SIR.

>> AND SEND IT BACK BECAUSE THE

WRONG FRAMEWORK WAS --

>> IF I COULD FOR JUST A

MOMENT.

AT THE SECOND DISTRICT LEVEL,

WE DID ARGUE, IF YOU LOOK AT

THE BRIEFS FOR AFFIRMMENT.

BECAUSE WE DID RECOMMEND

TERMINATION OF PARENTAL RIGHTS.

>> YOU CHANGED YOUR POSITION

HERE.

>> WE REALLY DIDN'T CHANGE OUR

POSITION.

TWO THINGS CHANGED THERE.

ONE THE SECOND DISTRICT ISSUED

A OPINION WHETHER CONSENT BY

NON-APPEARANCE IS VOLUNTARY OR

INVOLUNTARY.

>> BUT AGAIN, THAT IS OF

INTEREST BECAUSE OF THE

IMPLICATIONS IT MIGHT HAVE FOR

A SIBLING TERMINATION, RIGHT?

THAT'S WHY YOU'RE CONCERNED

ABOUT THAT?

>> YES. AND ALSO VOLUNTARY

SURRENDERS, YOUR HONOR.

>> UNDERSTAND.

>> IT WOULD CHANGE THE

FRAMEWORK FOR VOLUNTARY

SURRENDERS.

>> BUT JUST GETTING BACK TO

WHAT, HOW WE SHOULD HANDLE THIS

CASE?

IT SEEMS TO ME THAT, YOU

KNOW, WE'VE GOT ALL THESE, MORE

IS BEING DISCUSSED THAT HAS TO

DO WITH THINGS OTHER THAN WHAT

WE HAVE TO DECIDE TO DETERMINE

HOW THIS CHILD SHOULD BE DEALT

WITH, AND IT CONCERNS ME

SOMEWHAT THAT THE CHILD IN THIS

CASE IS BEING USED AS A TEST

CASE TO DEAL WITH ALL THESE

OTHER ISSUES THAT DON'T EFFECT

THIS CHILD, AND THE PERMANENCY

FOR THIS CHILD IS BEING DELAYED

SO YOU CAN BRING THIS UP HERE

AND GET US TO ISSUE AN ADVISORY

OPINION ON THESE OTHER

QUESTIONS.

>> YOUR HONOR, THE ISSUE OF

CONSENT BY NON-APPEARANCE IS A

VERY PROBLEMATIC ISSUE ACROSS

THE STATE.

THE SECOND AND THE FOURTH DCA

ADHERED TO A SIMILAR

FRAMEWORK --

>> YOU HAVEN'T ANSWERED WHAT

JUSTICE CANADY SAYS.

AND WE HAVE, THIS CASE WAS IN

THE SECOND DISTRICT FOR 15

MONTHS.

THE MOTHER HAS NOT CHALLENGED

IN THE SECOND DISTRICT OR HERE

THE FACT THAT SHE CAN NOT

PARTICIPATE IN THESE

PROCEEDINGS.

I MEAN SHE DID NOT GET TO SET

ASIDE THE DEFAULT AND THAT'S

NOT BEEN CHALLENGED.

SO, WHAT ABOUT ON BEHALF OF

THIS CHILD, WHO IS SPEAKING FOR

THIS CHILD? THAT THAT CHILD'S

ABILITY TO BE ADOPTED BY THE

FAMILY THAT THE CHILD HAS

BEEN DELAYED AND

UNDER THE SECOND DISTRICT'S

OPINION WILL BE DELAYED BECAUSE

THEY'RE SAYING LET IT GO BACK

FOR AN EVIDENTIARY HEARING

BECAUSE THE BEST INTERESTS WERE

DONE AT THE SEPTEMBER 25th

HEARING AS OPPOSED TO THE

AUGUST 20th HEARING?

>> WELL THE SECOND DISTRICT HAD

REMANDED IT FOR THAT.

IT IS TRUE, YOUR HONOR, WERE

THE COURT TO ADOPT THE FIFTH

DISTRICT AND THIRD DISTRICT

FRAMEWORK IT WOULD NEED TO

REVERSE THE ENTIRE ORDER.

>> BUT ISN'T THE GUARDIAN AD

LITEM'S JOB HERE TO BE ADVOCATE

FOR THIS CHILD?

>> YES, YOUR HONOR, WE ARE.

WE BELIEVE THAT --

>> HOW ARE YOU BEING AN ADVOCATE

FOR THIS CHILD?

>> WE BELIEVE A HEARING ON THE

MERITS WOULD GIVE THE CHILD THE

PERMANENCY SHE NEEDS.

>> I DON'T UNDERSTAND THAT.

HOW IS THIS CHILD AS OPPOSED

ANOTHER SIBLING, HOW IS THIS

CHILD EFFECTED IN POSITIVE WAY

IF THIS CASE WERE TO GO BACK

FOR A HEARING?

AGAIN, WOULD THE MOTHER GET TO

PARTICIPATE OR NOT?

>> THE MOTHER, IF SHE WERE

AVAILABLE, IF SHE WERE ABLE TO

BE FOUND, SHE WOULD GET TO

PARTICIPATE.

>> COULD THE OUT COMES BE

POTENTIALLY DIFFERENT?

>> EXCUSE ME.

>> COULD THE OUTCOME BE

POTENTIALLY DIFFERENT.

>> WELL THE CONSENT, YOUR

HONOR, WOULD STAND IF THAT WERE

-- BUT YES, CONCIEVEABLY COULD

BE DIFFERENT IF THE MOTHER WERE

AVAILABLE TO COME IN.

>> IF THE OUTCOME CAN BE

DIFFERENT, YOU'RE SUPPORTING

TERMINATION, RIGHT?

>> WE ARE SUPPORTTING TERMINATION

OF THE MOTHER'S PARENTAL

RIGHTS.

>> YOU THINK THAT IS IN THE

BEST INTEREST OF THIS CHILD?

>> WE BELIEVE A DECISION ON THE

MERITS IS GENERALLY IN THE BEST

INTERESTS OF THE CHILD.

>> HOW CAN YOU POSSIBLY COME

AND ARGUE THERE OUGHT TO BE

ANOTHER EVIDENTIARY HEARING TO

SUBJECT A CHILD TO A DIFFERENT

OUTCOME?

>> I WOULD SAY, YOUR HONOR,

THAT THIS WAS NOT THE BEST CASE

FACTUALLY FOR THE SECOND

DISTRICT TO CERTIFY IT BUT IT

IS AN ISSUE ACROSS THE STATE.

>> HOW IN THE WORLD COULD THERE

EVEN BE A DIFFERENT OUTCOME IN

THIS CASE?

THE MOTHER ACTUALLY HAD A

HEARING ON WHETHER THE DEFAULT,

THE CONSENT DEFAULT WAS GOING

TO BE SET ASIDE.

THE JUDGE DENIED THAT.

IS THAT AN ISSUE HERE?

>> WELL THE CONSENT I THINK

SHOULD STAND.

>> IS THE JUDGE'S RULING

DENYING THE DEFAULT CONSENT, IS

THAT AN ISSUE HERE?

>> NO. I DON'T BELIEVE SO.

>> SO, NO MATTER WHERE WE ARE

IN THIS, THAT HAS TO STAND.

WHICH MEANS THAT THE MOTHER CAN

NOT COME IN NOW AND TRY TO

CONTEST TERMINATION.

>> WELL, SHE COULD CONCEIVABLY

CONTEST THE SECOND ELEMENT OF

TERMINATION, WHICH IS EVIDENCE

AS TO WHAT IS IN THE BEST

INTERESTS OF THE CHILD.

>> I CAN NOT BELIEVE THAT THE

GUARDIAN AD LITEM IN THIS CASE

IS ASSERTING THAT ON BEHALF OF

THIS CHILD.

>> YOUR HONOR, IT'S NOT THAT

WE'RE ASSERTING THAT ON

BEHALF, ASSERTING ON BEHALF OF THE

CHILD BECAUSE A DECISION ON THE

MERITS IS VALUABLE.

THE MOTHER --

>> YOU HAVE A DUTY, YOU HAVE A

DUTY TO THIS CHILD, DO YOU NOT?

>> YOUR HONOR, I BELIEVE I AM

FULFILLING THAT.

>> YOU BELIEVE THAT, THE

POSITION YOU ARE ADVOCATING IS

CONSISTENT WITH YOUR DUTY TO

ADVOCATE FOR THE INTEREST OF

THIS CHILD?

>> THIS CHILD DESERVES A

DECISION ON THE MERITS AND

DESERVED IT THEN AND WE BELIEVE

THAT IS THE BEST, IS IN THE

BEST INTEREST OF THIS CHILD.

>> WHEN YOU SAY DECISION ON THE

MERITS, DO YOU MEAN TO HAVE --

>> WAS EVIDENCE TAKEN AS TO A

GROUND FOR TERMINATION OF

PARENTAL RIGHTS?

>> YOUR HONOR, YES.

>> I THOUGHT YOU SAID THERE WAS

EVIDENCE TO SUPPORT THAT?

>> WELL THE CONSENT, THE

CONSENT, THE MOTHER DID NOT --

>> BUT IT IS YOUR POSITION

THERE IS EVIDENCE TO SUPPORT --

>> NO, I DIDN'T SAY THAT, YOUR

HONOR.

>> BUT YOU WOULDN'T BE

SUPPORTING THE TERMINATION

UNLESS YOU THOUGHT THERE WAS

EVIDENCE TO SUPPORT IT, WOULD

YOU?

>> WE BELIEVE THAT UNDER

EXISTING SECOND DISTRICT CASE

LAW, THAT CASE WAS AFFIRMABLE

IN RE, ADC.

THAT IS WHAT WE ARGUED AT

SECOND DISTRICT LEVEL.

>> WHY AREN'T YOU STILL ARGUING

THAT?

>> BECAUSE --

>> THE ONLY THING I CAN SEE THE

TRIAL COURT MAY HAVE DONE,

ACTUALLY, I DON'T SEE ANYTHING

THAT THE TRIAL COURT DID WRONG.

>> YOUR HONOR, THE, IF I COULD

JUST POINT THE COURT TO THE

STATUTE FOR A MOMENT.

801.3(D) IS CONSENT BY

NON-APPEARANCE STATUTE.

801.3(A).

FOLKS REQUIRED TO RECEIVE

NOTICE OF TERMINATION THAT

INCLUDES PARENTS AND ALSO

GRANDPARENTS AND GUARDIAN AD

LITEM.

IF YOU THEN LOOK AT THE SECTION

ON CONSENT BY NON-APPEARANCE,

IT TALKS ABOUT IF A PERSON,

THERE ARE TWO SENTENCES IN THAT

PROVISION.

AND IT SAYS, IF A PERSON DOES

NOT APPEAR AT THIS ADVISORY

HEARING, THEN THEY HAVE

CONSENTED TO TERMINATION OF

PARENTAL RIGHTS.

WE KNOW, UNDER 802.4 WHICH HAS

THE ELEMENTS OF TERMINATION OF

PARENTAL RIGHTS, THAT MEANS A

GROUND FOR TERMINATION, FACTS

SUPPORTING A GROUND FOR

TERMINATION.

EVIDENCE AS TO WHAT IS IN THE

BEST INTEREST AND OF COURSE

COUNSEL AND PROPER NOTICE.

>> SO ALL YOU'RE REALLY, IT

SEEMS TO ME, WHAT YOU'RE SAYING

TO US IS LOOK, WE NEED

FORMALITY OF PUTTING ON THE

RECORD THIS EVIDENCE SUPPORTS

WHATEVER GROUND FOR

TERMINATION, BUT, THE QUESTION

IS, THAT'S ONLY NECESSARY,

REALLY IF YOU'RE LOOKING DOWN

THE ROAD TO SOME OTHER SIBLING.

FOR THIS CHILD, IT COULD END

RIGHT HERE AND NOW?

>> NO, MA'AM.

I ALSO THINK THAT IT COMPLETELY

UPPED MINES WHAT THE

LEGISLATURE INTENDED TO BE A

VOLUNTARY SURRENDER.

IF WE LOOK AT THE 806.1(A),

THE VOLUNTARY SURRENDER

PROCEDURE, IT REQUIRES PARENTS

PRESENT IN COURT.

IT REQUIRES THEM COMING TO TALK

TO THE DEPARTMENT.

IT REQUIRES SIGNING A DOCUMENT

WITH WITNESSES.

IT REQUIRES A DISCUSSION ON THE

RECORD OF COLIQUY WITH THE

COURT AS TO VOLUNTARINESS AND

ET CETERA, AND I THINK THAT'S

VERY DIFFERENT THAN JUST

AVOIDING THE PROCEEDING.

>> IT IS TRUE THE SECOND

DISTRICT IN DISCUSSING THIS

KIND OF MELDED TOGETHER --.

>> YES, THEY DID.

>> -- THIS PROVISION AND THAT.

I UNDERSTAND THAT AND I

UNDERSTAND THAT THE CONCERN

THAT MIGHT BE PROBLEMATIC.

BUT INSOFAR AS THE RESULT IN

THIS CASE IT MAKES NO

DIFFERENCE ON THIS ISSUE

WHETHER THEY HAVE GOT TO GO

FORWARD WITH PROOF.

>> I CONCEDE, YOUR HONOR, WE,

IN THIS SET OF FACTS WE

RECOMMENDED TERMINATION AND WE

WANT TERMINATION FOR THIS

CHILD.

>> ISN'T THAT WHAT YOU WERE

FIRST ADVOCATING HERE THAT THIS

CASE SHOULD BE, INSTEAD OF A

NEW EVIDENTARY HEARING? ISN'T THERE

ENOUGH HERE, EVEN UNDER YOUR

THEORY TO AFFIRM IT ON

ALTERNATIVE GROUNDS?

I MEAN, THAT'S, BUT, WE NEED TO

HEAR FROM THE DEPARTMENT

BECAUSE THEY'RE ADVOCATING I

GUESS A DIFFICULT POSITION, TO

HEAR WHAT THEY HAVE TO SAY.

>> YOUR HONOR, MAY I JUST

FINISH MY DISCUSSION AS TO

801.3(D).

>> VERY SHORTLY.

YOU HAVE USED UP A SUBSTANTIAL

PORTION OF THE ENTIRE ARGUMENT.

>> I'M SORRY, I APOLOGIZE.

THAT PROVISION ITSELF

CONTEMPLATES THE FACT THAT

THERE WOULD BE, THAT THE TRIAL

COURT WOULD MOVE FORWARD TO THE

TRIAL ITSELF.

IF YOU LOOK AT IT, IF A

GRANDPARENT WERE NOT TO APPEAR,

SAYS IF A PERSON SERVED WITH

NOTICE UNDER THIS SECTION DOES

NOT APPEAR, THEY CONSENT TO

TERMINATION.

NOW IF A GRANDPARENT DOESN'T

APPEAR WHO IS REQUIRED TO GET

NOTICE, WE CLEARLY, THE TRIAL

WOULD MOVE FORWARD.

>> LET ME TAKE YOU TO RULE

8.510(A) WHICH HAS TO DO WITH

ADVISORY HEARINGS.

SUBSECTION THREE SAYS, IF A

PARENT SERVED WITH NOTICE FAILS

TO APPEAR AT THE ADVISORY

HEARING THE COURT SHALL ENTER

CONSENT TO TERMINATION OF

PARENTAL RIGHTS PETITION FOR A

PARENT WHO FAILED TO PERSONALLY

APPEAR.

OKAY, THAT GETS ENTERED BY THE

COURT FOR FAILURE TO APPEAR.

NEXT SUBSECTION SAYS, IF

ADMISSION OR CONSENT ENDED BY

ALL PARENTS, I THINK IN CONTEXT

YOU HAVE TO INCLUDE WHAT THEY

HAVE JUST TALKED ABOUT, OR FOR

A NAMED CHILD INCLUDED IN

PETITION FOR TERMINATION OF

PARENTAL RIGHTS AND THE COURT

FINDS TERMINATION OF PARENTAL

RIGHTS IS IN THE BEST INTEREST

OF THE CHILD THE COURT WILL

DISPOSITION ALTERNATIVES AS

PROVIDED BY LAW.

IT DOES NOT CONTEMPLATE THERE

AN ADJUDICATION OF OTHER

GROUNDS.

THE WAY I READ IT.

>> IT CONTEMPLATES THE

APPEARANCE OF THE PARENTS WHICH

JUST NEGLECTING THE PROCEEDINGS

IS VERY DIFFERENT.

I WOULD JUST END BY SAYING THIS

COURT IN 2000 IN THE J.B. CASE

ON PAGE 267 SAID VIRTUALLY THE

SAME THING.

CONSENT BY DEFAULT IS ESSENTIAL

TO ENSURE OBJECT OF PROCEEDING

IS NOT BY PARENTS NEGLECT OF

THE PROCEEDING.

ENABLES A TRIAL COURT TO BRING

TERMINATION OF PARENTAL RIGHTS

TO CONCLUSION EVEN IF THE

PARENT HAS CHOSEN NOT TO

PARTICIPATE.

>> ALL YOU'RE SAYING IF THE

JUDGE SAID, TELL US, GIVE US,

WHY HE WAS NEGLECTED OR,

WHATEVER EVIDENCE THERE IS OF

NEGLECT, THAT WOULD

HAVE BEEN THE END OF IT?

>> YES.

>> IN THE SAME HEARING WHERE

THE MOTHER WAS IN DEFAULT,

THAT'S WHAT YOU'RE ASKING US,

IS TO TAKE THAT TECHNICAL STEP

OF THE DEPARTMENT PUTTING ON

THE RECORD THE GROUNDS

FOR THE --

>> ISN'T THAT WAIVED IN THIS

CASE BECAUSE NO ONE OBJECTED

BELOW?

IF SOMEBODY, IN IF THE GAL

SAID, JUDGE YOU NEED TO DO

SOMETHING ELSE WE NEED TO GO

THROUGH THIS FORMALITY I DON'T

UNDERSTAND WHY IT HAS NOT, ITS

BEEN WAIVED BY NO PARTY HAVING

BROUGHT IT UP BELOW?

IT IS NOT JURISDICTIONAL.

>> I AGREE, YOUR HONOR, IN THIS

CASE THE GUARDIAN AD LITEM DID

NOT OBJECT TO THAT.

>> THEN WHY DO YOU COME UP

HERE, WHEN YOU HAVE NOT SOUGHT

TO HAVE THIS PROCESS WORK THIS

WAY THERE AND EXTEND THIS AND

DELAY THE PERMANENCY OF, FOR

THIS CHILD BY EXTENDING THESE

PROCEEDINGS?

>> YOUR HONOR, BECAUSE UNDER

EXISTING SECOND DISTRICT CASE

LAW, AT THE TIME THAT WASN'T

NECESSARY.

UNDER IN RE: A.D.C, THAT WASN'T

NECESSARY.

ONCE THEY ISSUED THE OPINION AS TO

VOLUNTARINESS AND ONCE WE GOT

HERE AND REVIEWING IT.

>> AS VOLUNTARINESS, WOULDN'T

YOU TAKE THE POSITION THAT IS

DICTA?

WHEN IT COMES TO MAKING

DETERMINATION ABOUT IMPACT OF

THAT IN A SUBSEQUENT CASE, THAT

IS NOT GOING TO BE

DETERMINATIVE OF HOW THAT ISSUE

IS GOING TO BE DECIDED

BECAUSE THAT WAS NOT AN ISSUE

THAT WAS ACTUALLY BEFORE THE

COURT?

>> THAT'S TRUE, YOUR HONOR.

BUT CERTAINLY BEFORE THIS COURT

THE INTERDISTRICT CONFLICT.

>> WELL, I MEAN I CAN SEE

THERE'S CONFLICT BUT THE

CONFLICT ISSUE SEEMS TO BE WHAT

YOU TALK ABOUT VERY LITTLE, AT

LEAST IN THE BRIEFS AND THE

FOCUS IS ALL ON THIS OTHER

THING, WHICH IS NOT

REALLY AN ISSUE IN THIS CASE.

>> WELL, WE BELIEVE THAT

BECAUSE THE SECOND DISTRICT

ISSUED THEIR OPINION CONCERNING

VOLUNTARINESS, AND REALLY THE

ONLY VOLUNTARY PROVISION IN THE

GROUNDS SECTION OF THE STATUTE,

THE VOLUNTARY SURRENDER.

AND THE VOLUNTARY SURRENDER IS

NOT ABOUT JUST NOT COMING, JUST

NOT SHOWING UP.

THE VOLUNTARY SURRENDER IS AN

AFFIRMATIVE ACT.

I THINK IF THE COURT WERE TO

AFFIRM THE OPINION OF THE

SECOND DISTRICT, THAT WE WOULD

BASICALLY ABROGATE THAT

AFFIRMATIVE ACT OF THE

VOLUNTARY SURRENDER.

WHAT VERY FEW PARENTS

REALISTICALLY, WHEN GIVEN THE

CHOICE WHETHER THEY HAVE TO

AFFIRMATIVELY COME IN BEFORE A

JUDGE AND THE DEPARTMENT AND

SIGN PAPERS AND, PUT THEIR

RELENDING WISHMENT OF RIGHTS ON

THE RECORD, ARE GOING TO CHOOSE

THAT OVER JUST NOT APPEARING.

>> THANK YOU VERY MUCH.

YOU HAVE WELL-USED YOUR

TIME.

WE'LL GIVE YOU SOME ADDITIONAL

TIME.

>> MAY IT PLEASE THE COURT,

COUNSEL, MY NAME IS KELLEY

SCHAEFFER.

I REPRESENT THE DEPARTMENT OF

CHILDREN AND FAMILIES IN THIS

CASE.

>> I ALSO GOT TO ASK THE

DEPARTMENT, I KNOW YOU HAVE A

LIMITED TIME, WHAT IS THE

EXCUSE FOR A CHILD

PLACED IN A SHELTER IN 2004 TO

STILL BE IN LIMBO FIVE YEARS

LATER? WHAT HAVE WE DONE TO

EXPEDITE REVIEW?

IN THE SECOND DISTRICT, THIS

APPEAL WAS FILED IN OCTOBER OF

2007.

IT WASN'T DECIDED UNTIL

DECEMBER OF 2008.

THERE IS NO RECORD TO DECIDE

THIS, THESE FACTS.

I MEAN, THERE IS NO RECORD TO

HAVE LOOKED AT.

WHAT IS THE DEPARTMENT, AND NOW

THEY'RE BRINGING THIS CASE UP

WHEN IT'S CLEAR THAT THIS HAS

BEEN WAIVED BY ANYBODY

COULD POSSIBLY HAVE AN INTEREST

IN THE MATTER BY NOT HAVING

RAISED IT BELOW?

WHY BRING THIS CASE TO THIS

COURT?

>> WELL, WE'RE CERTAINLY NOT

TRYING TO DELAY PERMANENCY FOR

THIS TRIAL.

>> CERTAINLY LOOKS LIKE --

ISN'T THAT HAPPEN?

EVERY MONTH THIS CASE IS BEFORE

THIS COURT SINCE THE SECOND

DISTRICT RULED IS, IS DELAYING

THE PERMANENCY OF THIS CHILD?

>> IT IS DELAYING PERMANENCY.

HOWEVER, WE ARE OF THE POSITION

THAT THE SECOND DISTRICT COURT

OF APPEAL IN THIS CASE

PARTIALLY GOT IT CORRECT IN

THEIR SAYING THAT AN ADDITIONAL

EVIDENCE AFTER A CONSENT BY

NON-APPEARANCE IS NOT REQUIRED.

WE THINK THEY GOT IT PARTIALLY

INCORRECT IN THE SENSE THAT

THEY REMANDED IT.

WE BELIEVE THAT IT SHOULD HAVE

BEEN AFFIRMED OUTRIGHT, BASED

ON THE FACT THAT THERE WAS

PROPER CONSENT BY

NON-APPEARANCE, THAT IS ALLOWED

BY THE STATUTE.

THERE WAS MANIFEST BEST

INTEREST TESTIMONY GIVEN BY THE

GUARDIAN AD LITEM AT A

SUBSEQUENT HEARING.

>> LET ME ASK YOU THIS.

IN PRACTICAL TERMS, IF YOU HAD

GONE ON PURSUANT TO THE SECOND

DISTRICT'S OPINION AND HAD,

WHAT KIND OF HEARING DID THEY

WANT YOU TO HAVE?

A HEARING TO PUT ON THE RECORD

WHAT THE BASIS FOR THE

TERMINATION WAS?

THIS WOULD HAVE BEEN OVER

SEVERAL MONTHS AGO, CORRECT?

>> THEY WANTED US TO GO BACK TO

HAVE TESTIMONY AS TO MANIFEST

BEST INTEREST BECAUSE THEY WERE

UNDER THE MISTAKEN BELIEF WAS

THAT TESTIMONY WAS NOT

CONSIDERED WHEN THE TRIAL COURT

ENTERED THEIR TERMINATION OF

PARENTAL RIGHTS.

>> ON THAT SITUATION, THAT'S

WHAT I DON'T UNDERSTAND.

IT SOUNDS LIKE THE SECOND

DISTRICT IS SAYING NOT ONLY

WOULD HAVE TO GO BACK AND REDO

THE GAL ON, BUT GIVE THE MOTHER

A CHANCE TO CONTEST IT?

SAYS FOR PARTIES TO PUT ON

EVIDENCE OF BEST INTEREST.

>> YES. WE WERE UNCLEAR

WHETHER OR NOT

THE CONSENT WOULD ACTUALLY

STILL REMAIN IN EFFECT.

AND WE DID FILE A MOTION FOR

CLARIFICATION WHICH WAS DENIED.

BUT IN DOING SO, IN REMANDING,

BECAUSE THE TPR ORDERED IS NOT

ENTERED UNTIL AFTER THE COURT

HEARS MANIFEST BEST INTEREST

TESTIMONY THE MOTHER WOULD --

>> DID THEY GIVE, HEAR THAT

TESTIMONY AT SEPTEMBER HEARING?

>> THEY DID. BUT THE DCA

DID NOT THINK THAT --

>> THAT IS NOT A CONFLICT

ISSUE.

THAT IS JUST SOME, THAT'S, SO

WHAT YOU'RE SAYING ON THE

MERITS THAT WHEN I CONSENT TO

TERMINATION, THERE IS NO REASON

TO ESTABLISH -- ALTERNATIVE,

THERE IS NOT A

BASIS FOR THE JUDGE TO NEED TO

INQUIRE AS TO ADDITIONAL

GROUNDS FOR TERMINATION?

>> ABSOLUTELY.

FOR THIS COURT TO REQUIRE

ADDITIONAL EVIDENCE WOULD

ESSENTIALLY RENDER THIS STATUTE

MEANINGLESS.

THE LANGUAGE IS PRETTY CLEAR.

THE COURT SHALL.

>> WHY SHOULD THE MOTHER BE

ABLE TO INSIST ON THE

DETERMINATION WITH RESPECT TO

BEST INTEREST EITHER?

IT SEEMS LIKE THAT HER CONSENT

BY VIRTUE OF HER FAILURE TO

APPEAR, IF IT IS GOING TO HAVE

ANY MEANING MEANS SHE IS OUT OF

IT, SHE'S DONE.

AND SHE SHOULD NOT BE ALLOWED

TO POP BACK UP AND OBJECT TO

ANY ASPECT OF THESE

PROCEEDINGS.

BECAUSE THAT, IF WE ALLOW HER

TO POP BACK UP IN THESE

PROCEEDINGS, AND OBJECT TO THIS

OR THAT, THEN, THE, THE CONSENT

IS REALLY RENDERED, IF NOT

ENTIRELY MEANINGLESS, IT

CERTAINLY RENDERED NOT VERY

MEANINGFUL.

SHE CAN EXTEND THESE

PROCEEDINGS AND THE WHOLE POINT

OF THIS IS TO TRY TO GET THIS

TO A POINT OF CONCLUSION

FOLLOWING DUE PROCESS AND

PROPER PROCEDURES BUT TO A

POINT OF CONCLUSION SO THE

CHILD CAN HAVE PERMANENCY.

RIGHT?

>> YES. YES.

ULTIMATELY THAT'S THE ULTIMATE

GOAL IN EVERYONE OF OUR CASES

BUT STATUTORILY IT REQUIRES A

GROUND TO BE PROVEN AND

MANIFEST BEST INTEREST --

>> BUT IF THERE IS NO ONE, IF

THERE'S NO ONE WHO IS IN A

POSITION TO OBJECT TO A FAILURE

ON THOSE POINTS, THERE

SHOULDN'T, THERE IS NOBODY TO

OBJECT.

THERE'S NO BASIS FOR

OVERTURNING THE JUDGMENT OF

TERMINATION, IS THERE?

>> NO.

>> WHEN THERE'S A WRITTEN

VOLUNTARY SURRENDER, IS THERE A

MANIFEST BEST HEARING

DETERMINATION BY THE TRIAL

JUDGE?

>> YES THERE IS.

>> SO THAT'S STILL REQUIRED.

>> YES, THERE IS.

THAT IS STILL REQUIRED.

>> WHO BROUGHT THE, WHO BROUGHT

THE CASE FROM THE TRIAL COURT

TO THE SECOND DISTRICT?

WHICH PARTY?

>> THE MOTHER.

>> AND DID THE MOTHER ARGUE,

SAID, THE DEFAULT SHOULD BE SET

ASIDE.

>> I BELIEVE SHE DID ARGUE

THAT.

>> THAT IS NOT EVEN ADDRESSED

IN THE SECOND DISTRICT OPINION?

>> NO.

>> WE'LL HEAR FROM THE MOTHER'S

ATTORNEY AND FIND OUT. I'M JUST --.

>> I GUESS MY ONLY REAL, ONE OF

THE ISSUES THAT COMES TO MY

MIND IS THAT WE HAVE A

STATUTORY SCHEME THAT IN FACT

SAYS, WHAT THE GROUNDS FOR

TERMINATION ARE.

AND NOT INCLUDED IN THOSE EIGHT

OR NINE GROUNDS IS CONSENT BY

NON-APPEARANCE.

I MEAN IT DOES TALK ABOUT

CONSENT COUPLED WITH FINDING OF

SURRENDER AND ALL THOSE KINDS

OF THINGS.

SO THAT'S WHY I'M TRYING TO

FIGURE OUT HERE WAS IT

NECESSARY AT THE TIME SHE DID

APPEAR, TO PUT THOSE EIGHT OR

NINE GROUNDS ON THE RECORD?

THAT IS HOW YOU TERMINATE

PARENTAL RIGHTS OR WHETHER OR

NOT YOU IMPLICITLY SAY THE

LEGISLATURE HAS ANOTHER GROUND

BY SAYING THAT THE MOTHER HAS

CONSENTED BY NOT APPEARING?

WHAT IS YOUR POSITION ON THAT?

>> MY POSITION IT IS VERY, IT

IS VERY AMBIGUOUS IN THE SENSE

THAT IT IS UNCLEAR ACCORDING TO

THE STATUTE WHETHER, IT JUST

SAYS THAT THEY ARE CONSENTING

TO THE TERMINATION OF PARENTAL

RIGHTS.

IT DOESN'T SAY THE ALLEGATIONS

IN THE PETITION.

DOESN'T SAY THE GROUNDS.

IT JUST SAYS THEY'RE

CONSENTING.

SO IN AN ABUNDANCE OF CAUTION

WE HAVE GONE ON

TO PRESENT MANIFEST BEST

INTEREST TESTIMONY.

IF THEY ARE CONSENTING TO THE

ALLEGATIONS --

>> IS THIS MANIFEST BEST INTEREST

A LITTLE DIFFERENT FROM THE

GROUNDS THAT ARE LAID OUT AS

GROUNDS FOR TERMINATION?

THAT'S THE PART THAT OF

INTEREST TO ME IS, DO YOU NEED

THAT GROUND FOR TERMINATION,

ONE OF THOSE THAT ARE IN

39.806, OR WHETHER OR NOT THE

STATUTE TALKING ABOUT CONSENT,

OR NON-APPEARANCE IS AN

ADDITIONAL GROUND?

>> I DON'T THAT IT IS A

GROUND -- ADDITIONAL GROUND AND

I THINK IF THE LEGISLATURE

WANTED IT THERE THEY WOULD HAVE

PUT IT THERE.

BUT I DON'T THINK, IF YOU HAVE

A CONSENT FOR NON-APPEARANCE

YOU DON'T THAT YOU HAVE TO

PROVIDE GROUNDS.

PARENT CONSENT TO TERMINATION

OF PARENTAL RIGHTS.

THEY'RE CONSENTING TO THE WHOLE

THING.

THEY'RE CONSENTING IT IS IN THE

CHILD'S BEST INTEREST --

>> YOU'RE ARGUEMENT IS THAT IS

REALLY IS A GROUND?

>> I THINK IT WRAPS UP THE

WHOLE PROCEDURE IN A NICE NEAT

PACKAGE AND SAYS, HERE, THE

PARENT'S NOT PARTICIPATING.

THE PARENT HAD THE OPPORTUNITY.

THEY DID NOT, WERE NOT DENIED

DUE PROCESS BECAUSE THEY HAD

NOTICE AND AN OPPORTUNITY TO BE

HEARD AND THEY DIDN'T TAKE THAT

OPPORTUNITY.

THEREFORE, THE FUNDAMENTAL, THE

FOCUS SHIFTS FROM A PARENT'S

FUNDAMENTAL RIGHT TO PARENT AT

THAT POINT, WHEN THEY CHOOSE

NOT TO PARTICIPATE, IT THEN

SHIFTS TO A CHILD'S RIGHT TO

PERMANENCY.

>> THE WAY I SEE THIS ANYWAY AS

I NOW LOOK AT FOOTNOTE ONE OF

THE SECOND DISTRICT'S OPINION,

IF THE MOTHER WANTED TO THE

CONTEST THE PROCEDURE THAT WAS

GOING TO OCCUR AFTER THE

DEFAULT WAS ENTERED, WHICH THE

MOWER NEEDED TO BE AT THAT

HEARING AND ATTEMPT TO

PARTICIPATE TO SAY THIS IS WHAT

SHOULD HAPPEN.

I DON'T UNDERSTAND HOW THEY,

THE SECOND DISTRICT FOUND THAT

THE MOTHER WAS STILL ABLE TO

RAISE THAT POINT ON APPEAL AND

CALL THAT FUNDAMENTAL ERROR.

I MEAN, COUNSEL AND THE MOTHER

MADE A DECISION NOT TO BE AT

THAT HEARING, WHERE, AT THAT

POINT BEST INTERESTS WERE BEING

DETERMINED, CORRECT?

>> YES.

THAT'S WHY WE ARE ASKING TO

BASICALLY AFFIRM THE TRIAL

COURT'S ORDER BECAUSE WE DON'T

FEEL THE TRIAL COURT DID

ANYTHING WRONG.

>> YOU WANT US TO QUASH THE

SECOND DCA'S OPINION, SAY THEY

GOT RIGHT ON THIS CONFLICT

ISSUE, RIGHT?

>> YES.

>> THE CONFLICT ISSUE.

BUT GOT IT WRONG ON THE REMAND

WITH RESPECT TO BEST INTEREST?

>> YES.

>> BUT COULDN'T WE ALSO SAY

THAT THE MOTHER WAIVED ANY

ISSUE BY NOT APPEARING AT THAT

HEARING ON, THE SECOND HEARING,

AND HOW MUCH MORE OF A BURDEN

IS IT FOR THE DEPARTMENT WHEN

THEY'RE PUTTING ON BEST

INTEREST TO ALSO PUT ON

EVIDENCE OF ONE OR MORE OF THE

GROUNDS?

ISN'T IT AGAIN IN MANY CASES,

OF THIS NATURE IT IS GOING TO

BE THE SAME EVIDENCE?

>> AND SOMETIMES IT IS.

IF IT IS A SIMPLE CASE WHERE

YOU HAVE A SITUATION WHERE

INCARCERATED PARENT WHERE YOU

HAVE TO DO IS ADMIT A CERTIFIED

CONVICTION IT IS NOT THAT BAD.

IF YOU'RE DEALING WITH A CASE

OF A SHAKEN BABY OR SOMETHING

REQUIRE EXTENSIVE TESTIMONY,

EXPERT WITNESSES A LOT OF TIME

AND LOT OF RESOURCES IT IS A

LITTLE BIT DIFFERENT.

>> IS THAT HOW IT IS HAPPENING

WITH ALL OTHER COURTS, THE

PARENT DOESN'T APPEAR THEY'RE

STILL HAVING FULL-BLOWN

HEARINGS ON GROUNDS FOR

TERMTATION OR ARE THEY JUST

GOING THROUGH THE MOTIONS?

>> I BELIEVE IN THE THIRD AND

FIFTH THEY'RE PRESENTING AN

EVIDENTIARY HEARING, BASICALLY

AN EMPTY CHAIR TRIAL.

>> NOBODY GETS TO APPEAL THAT?

DOES ANYONE GET TO APPEAL THAT?

>> AND NO ONE PUTS ON CONTRARY

EVIDENCE IF THE PARENT ISN'T

THERE.

>> YES.

>> WELL, THANK YOU, VERY MUCH,

ALSO.

I THINK WE NEED TO HEAR FROM

THE RESPONDENT NOW.

>> MAY IT PLEASE THE COURT.

MY NAME IS LORENA KILEEY.

I'M HERE ON BEHALF OF THE

MOTHER.

>> DID YOU REPRESENT THE MOTHER

IN THE TRIAL COURT?

>> NO, MA'AM.

>> AGAIN YOU TRY TO LOOK AT,

YOU WANT TO GET LOFTY

PRINCIPLES OF LAW AND YOU WANT

TO UNDERSTAND HOW IT APPLIES IN

A REAL-LIFE SITUATION.

WHAT I DON'T UNDERSTAND ON THE

AUGUST 20th HEARING THE MOTHER

DIDN'T APPEAR BUT THE ATTORNEY

FOR THE MOTHER APPEARED.

AT THAT POINT THE GUARDIAN AD

LITEM WASN'T PRESENT.

WHY DIDN'T THE ATTORNEY FOR THE

MOTHER SAY, I'D LIKE TO YOU

KNOW, MY CLIENT'S NOT HERE BUT

I KNOW SHE WANTS TO PARTICIPATE

OR I HAVEN'T BEEN ABLE TO GET

AHOLD OF HER.

SINCE YOU'RE NOT GOING TO GO

AHEAD NOW, CAN'T WE JUST, YOU

KNOW, HAVE THIS IN SEPTEMBER?

IT JUST, SEEMS TO ME THAT IF

THAT HAD HAPPENED, THIS WOULD

ALSO NOT, THIS CASE WOULD NOT

HAVE GOTTEN OFF ON THIS TRACK.

WOULD YOU, AGAIN, WOULD YOU

AGREE WITH THAT?

>> ABSOLUTELY.

YOU KNOW, I HANDLED AT THE

SECOND DISTRICT.

I GOT THE RECORD THAT I GOT.

YOU KNOW, THERE'S NOTHING I CAN

DO ABOUT THAT.

I CAN'T EXPLAIN WHY THAT

HAPPENED.

>> WHY SHOULD WE MAKE BAD LAW

ON THIS?

THE OTHER PART IS, THE ATTORNEY

WAS FULLY AROUND WHEN SEPTEMBER

25th CAME ALONG AND IF THE

ATTORNEY OR THE MOTHER AT THAT

POINT WANTED TO MAKE AN ATTEMPT

TO CONTEST IT, SHOULDN'T THEY

HAVE HAD APPEAR AT THAT HEARING

AND ATTEMPT TO BE HEARD?

>> I THINK THE BEST THING THAT

COULD HAVE HAPPENED WOULD HAVE

BEEN EXACTLY THAT AND IT DIDN'T

HAPPEN AND WHEN, IN MY BRIEF IN

THE SECOND DISTRICT I DID RAISE

THE ISSUE ABOUT THE

INSUFFICIENCY OF NOTICE.

I DID RAISE ISSUES WHETHER THE

MOTION TO VACATE SHOULD HAVE

BEEN SET ASIDE.

THE LAST ARGUMENT I MADE, YOU

KNOW, IN THE OTHER DISTRICTS

THEY'RE DOING THIS.

>> AFTERTHOUGHT FOR YOU?

>> IT WASN'T AN AFTERTHOUGHT.

IT WAS MY THIRD ARGUMENT.

SO I RAISED THE ISSUE.

I'M THE ONE WHO STARTED THIS

WHOLE FIASCO.

>> YOU RAISED IT INITIALLY

ALTHOUGH IT DOESN'T APPEAR IN

THE WRITTEN OPINION YOU WERE

ACTUALLY DOING WHAT I THINK

WOULD MAKE SENSE, MAYBE THE

DEFAULT SHOULD HAVE BEEN SET

ASIDE.

>> EXACTLY.

>> BUT THAT'S NOT IN THE

OPINION.

>> THAT WAS MY PRIMARY ARGUMENT

BEFORE THE SECOND DISTRICT.

I AS MY THIRD ARGUMENT, I

USUALLY ONLY HAVE TWO

ARGUMENTS, AS MY THIRD

ARGUMENT I SAID OTHER

DISTRICTS WERE DOING SOMETHING

DIFFERENT WHICH HELPED MY

CLIENT THE MOTHER.

>> THE OTHER DISTRICTS IF THERE

IS A DEFAULT ENTERED IT IS NOT

SET ASIDE, ARE THEY ALLOWING

THE PARENT THEN IT PARTICIPATE

IN THE SUBSEQUENT, AND AGAIN,

MANY TIMES AS IS MENTIONED,

THEY WOULD BE GOING AHEAD RIGHT

AT THAT SAME HEARING WHERE THE

PARENT DOESN'T SHOW UP.

BUT IF IT IS RESET ARE THEY

ALLOWING THE PARENT THEN TO,

JUSTICE CANADY, SO ELOQUENTLY

SAID, POP BACK INTO CONTEST A

GROUND FOR DETERMINATION AND

BEST INTEREST?

>> I DON'T KNOW BECAUSE I DON'T

DO THE TRIAL WORK.

ALL I CAN TELL FROM THE

OPINIONS IS LOOKS AS THOUGH

WHAT THOSE COURTS ARE DOING IS

ALLOWING THE ATTORNEY WHO IS

THERE FOR THE PARENT TO RAISE

OBJECTIONS, CROSS-EXAMINE, JUST

TO MAKE SURE, TO CONVINCE THE

TRIAL COURT THAT THEY'RE

ACTUALLY IS AN INVOLUNTARY

GROUND FOR TERMINATION.

>> BUT YOU ARE NOT, I WOULD BE

MUCH MORE CONCERNED FOR, YOU

KNOW, IN TERMS OF THE PROCESS

IF YOU WERE RAISING SOME

ADDITIONAL CONSTITUTIONAL

BASIS.

I APPRECIATE SO FAR YOUR CANDOR

ON ALL OF THIS.

IT MAKES ME FEEL MUCH BETTER

ABOUT YOUR ADVOCACY FRANKLY

BECAUSE I WAS CONCERNED WHAT

HAD HAPPENED AT THE TRIAL

COURT.

BUT IF YOU WERE MAKING A DUE

PROCESS ARGUMENT OR

CONSTITUTIONAL ARGUMENT WHAT

THE LEGISLATURE INTENDED IS

EVEN IF THERE WOULD BE THIS

CONSENT THAT THEY STILL

INTENDED FOR THE PARENT TO

CONTINUE TO BE ABLE TO

PARTICIPATE BECAUSE DUE PROCESS

REQUIRED IT, I FEEL, WELL,

THAT'S A GOOD ARGUMENT.

BUT ARE WE DOING THIS BASED ON

STATUTORY CONSTRUCTION AS

OPPOSED TO WHAT'S GOOD OR

WHAT'S CONSTITUTIONAL?

>> I THINK IT'S BOTH.

I THINK THE STATUTE, THE

INTERPLAY BETWEEN THESE TWO

STATUTORY PROVISIONS IS

INTERESTING IN WHAT IS NOT

INCLUDED.

AND WHAT IS NOT INCLUDED IS ANY

REFERENCE AT ALL IN 806.1 WHICH

SETS FORTH THE GROUNDS FOR

TERMINATION, IT NEVER

REFERENCES THE STATUTE THAT

DEALS WITH THE FAILURE TO

APPEAR.

>> DON'T YOU THINK NORMALLY

THAT WE KNOW WHAT A DEFAULT

MEANS?

AND A DEFAULT USUALLY, YOU

DON'T USUALLY NEED TO BE THAT

CLEAR AND SAY, ALTHOUGH THE

LEGISLATURE, YOU KNOW MAYBE HE

SHOULD, AND BY THE WAY, ALSO

THEY HAVE DEFAULTED, YOU DON'T

HAVE TO PROVE THIS PROVISION

BUT THESE OTHER GROUNDS.

BUT ISN'T THAT WHAT IS, YOU

KNOW, LOGICALLY KNOW WHAT

DEFAULTS MEAN, THAT IT MEANS

YOU DON'T HAVE TO GO AHEAD AND

PROVE ANY OF THOSE GROUND?

>> I THINK IF THE STATUTE WAS

WRITTEN THE WAY HOW YOU'RE

SUGGESTING WHERE IT JUST SAID,

PARAGRAPH 1-A, YOU KNOW,

THERE'S A DEFAULT.

BUT PARAGRAPH 1-A, THERE'S IT

IS VERY DETAILED SPECIFIC

PROVISION.

>> I AGREE WITH THE SECOND

DISTRICT MAYBE YOU DON'T EQUATE

THOSE TWO.

THIS ISSUE OF WHETHER IT'S

VOLUNTARY OR INVOLUNTARY HAS

SOME SIGNIFICANCE FOR SIBLINGS.

BUT FOR OUR PURPOSES, I DON'T

CARE WHAT YOU CALL IT, THE

ISSUE FOR ME IS, I DON'T KNOW

WHY THE DEPARTMENT WOULD SOMEWHER

TO BE REQUIRED TO GO THROUGH

THE SAME EVIDENCE THAT THEY

WOULD GO THROUGH IF THE PARENT

HAD APPEARED TO PROVE

TERMINATION.

AND THAT'S WHAT, I THINK THAT'S

WHERE THE DEPARTMENT, THEY'RE

SAYING WE'RE CALLING IT

VOLUNTARY.

YOU SAY NO, GOT TO CALL IT

INVOLUNTARY.

FROM THE PARENTS POINT OF VIEW,

OTHER SIBLINGS, ARE BETTER

OFF FOR THIS MOTHER IF IT IS

CALLED VOLUNTARY, THEY CAN'T

USE THIS TERMINATION IF THE

MOTHER HAS ANOTHER CHILD.

>> FOR THAT PURPOSE, SHE WOULD

BE BETTER OFF.

BUT TO MAKE SURE THAT THE FIRST

TERMINATION IS PROPERLY

ENTERED, IT WOULD BE NICE IF

THERE WAS SOME ACTUAL EVIDENCE

PRESENTED AS TO THE GROUNDS

ALLEGED IN THE PETITION.

>> LET ME ASK YOU WHAT YOU

THINK 39.701 -- 39.8013 (D)

MEANS?

WHAT IS THE CONSEQUENCE OF

THAT?

WHEN IT SAYS TO FAILURE TO

PERSONALLY APPEAR SHALL

CONSTITUTE CONSENT FOR

TERMINATION OF PARENTAL RIGHTS?

WHAT DOES THAT MEAN?

IS THAT KIND OF AN ASIDE HERE?

ALMOST LIKE BECAUSE IT IS NOT

MENTIONED IN THE SUBSEQUENT

SECTION OF THE STATUTE WE'RE

NOT GOING TO TREAT IT LIKE IT'S

IN THE STATUTE?

THE LEGISLATURE MEANT SOMETHING

BY THAT?

>> YOUR QUESTION, I THINK IS A

GREAT QUESTION BECAUSE, WE HAVE

ALL STRUGGLED WITH HOW DOES

THIS PROVISION FIT IN WITH 806

WHICH SETS FORTH THE GROUND?

AND THAT'S WHY I THINK THERE'S

SO MUCH THERE IS AMBIGUITY.

WE'RE NOT REALLY SURE WHAT THIS

3(D), HOW THAT FITS WITH 806.

>> SEEMS TO ME IT IS YOUR

OBLIGATION TO COME UP WITH A

PLAUSIBLE EXPLANATION OF WHAT

IT MEANS THAT DOES NOT CONSTITUTE,

ESSENTIALLY READING IT OUT OF

THE STATUTE.

>> TO ME THE WAY HOW I ANALYZED

IT IN THE BRIEF WAS, OKAY,

WE'RE TALKING ABOUT A VERY

SPECIFIC FAILURE TO APPEAR, A

REFERENCE, 801.3(D).

I TURNED TO 806.

I LOOKED AT 806(1), SETS THE

GROUND.

(A) DEALS WITH THE VOLUNTARY

DETERMINATION IS VERY SPECIFIC.

IT DEALS WITH A WRITTEN

SURRENDER AND TALKS ABOUT THE

REQUIREMENTS.

>> I CONCEDE THAT IS TALKING

ABOUT A DIFFERENT THING.

IT TALKS ABOUT SOMETHING WHERE

SOMEBODY COMES IN AND SIGNS A

WRITTEN, AS HAS AN EXECUTED

WRITTEN SURRENDER.

THAT'S NOT WHAT THIS EARLIER

SECTION IS TALKING ABOUT.

THOSE ARE CLEARLY DISTINCT

PROVISIONS.

>> RIGHT.

>> THAT DOESN'T MEAN THE

EARLIER PROVISION DOESN'T

EXIST.

>> AND I AGREE BUT TO ME

BECAUSE THIS IS THE 806 IS THE

ONE THAT SETS FORTH THE GROUNDS

FOR TERMINATION-.

>> I UNDERSTAND THAT.

GO BACK TO ME TO TELL ME WHAT

IT MEANS.

YOU HAVE TO, THE CONSENT FOR

TERMINATION OF PARENTAL RIGHTS

MEANS SOMETHING.

WHAT IS THE CONSEQUENCE OF THAT

CONSENT FOR TERMINATION OF

PARENTAL RIGHTS WHICH THE

LEGISLATURE HAS PROVIDED FOR IN

THIS SECTION?

>> WHAT IT MEANS TO ME IS THAT,

IT'S.

>> TRY TO TELL ME WHAT YOU

BELIEVE CAN BE REASONABLY

UNDERSTOOD TO MEAN BASED ON THE

TEXT OR CONTEXT.

I'M NOT INTERESTED IN

AUTOBIOGRAPHICAL COMMENT.

>> SURE.

>> I'M INTERESTED IN WHAT IT

SAYS.

>> WHAT IT SAYS IT CONSTITUTES

A CONSENT FOR TERMINATION OF

PARENTAL RIGHTS.

BUT THEN IN THE NEXT STEP IS,

IS THAT A GROUND?

WHICH IS DISTINCT FROM --

>> DON'T NEED A GROUND, IF YOU

PLED A COMPLAINT, AND YOU PLED

FOUR ALTERNATIVE GROUNDS FOR A

COMPLAINT IN A CIVIL CASE, THE

DEFENDANT DOESN'T SHOW UP,

THERE'S A DEFAULT.

THERE'S A DEFAULT AS TO THE

PETITION WHICH ALLEGED ALL

THOSE GROUNDS.

IT CAN'T BE CONTESTED.

THAT'S THE WHOLE IDEA IN CIVIL

LAW OF DEFAULT.

AND SO, I AM, THAT'S WHERE,

THIS IDEA WHERE DOES IT FIT

INTO THE GROUNDS, I WOULD THINK

THE LEGISLATURE WOULD HAVE, YOU

KNOW, A LOGICAL EXPLANATION IS,

THEY DIDN'T NEED TO WORRY ABOUT

THE GROUNDS.

NOW MANIFEST BEST INTEREST

BECAUSE IT IS IN DIFFERENT, I

THINK IT IS IN A DIFFERENT

STATUTE, NO ONE SEEMS, EVERYONE

SEEMS TO AGREE THAT DOES STILL

NEED TO BE ESTABLISHED.

BUT THAT'S, TO ME, A LOGICAL

EXPLANATION.

I WOULDN'T WANT TO END UP

CALLING IT VOLUNTARY OR

INVOLUNTARY.

THIS IS A CONSENT AT THE

TERMINATION BY THE MOTHER IF

THE NOTICE WAS PROPER, WHICH,

YOU KNOW, AT THIS POINT WE'RE

NOT CONTESTING ANY FURTHER.

>> RIGHT.

AND THAT IS THE INTERPRETATION

THAT HAS BEEN DONE I THINK BY

THE SECOND DISTRICT.

>> NO, BECAUSE THE SECOND

DISTRICT, THEY SORT OF TRIED TO

PUT IT UNDER THAT FIRST PART

ABOUT VOLUNTARY SURRENDER AND I

THINK THAT'S WHAT THE GAL WAS

FEELING LIKE THAT WAS SORT OF,

SORT OF AN AFRONT TO VOLUNTARY

SURRENDER BECAUSE IT CAN'T BE,

YOU KNOW, IT'S NOT THE SAME,

DOESN'T HAVE THE SAME

IMPLICATION.

SO MAYBE THIS ONE IS

INVOLUNTARY BECAUSE IT FITS

UNDER THE GROUNDS THAT THE

PETITION LAID OUT BUT WE DON'T

HAVE TO MAKE THAT DETERMINATION

IN THIS CASE, WHETHER IT'S

VOLUNTARY OR INVOLUNTARY

BECAUSE THERE IS NO OTHER

SIBLING INVOLVED.

AND THAT'S, YOU KNOW, THAT

WOULD BE THE ONLY REASON IT

WOULD BECOME, IN MY VIEW,

SIGNIFICANT.

>> WELL LET'S ASK IT ANOTHER

WAY THEN.

WHAT WOULD, WHAT IS THE PURPOSE

TO BE SERVED BY HAVING THE

DEPARTMENT PUT ON THE RECORD

ONE OF THESE GROUNDS FOR

TERMINATION, ONCE THE MOTHER IS

NO LONGER THERE?

SHE DIDN'T COME.

SO SHE'S NOT THERE TO

PARTICIPATE.

SO WHAT PURPOSE WOULD BE SERVED

IN GOING THROUGH THE MOTIONS AS

IT WERE?

>> THE WAY, HOW I HAVE LOOKED AT

IT, IT ADDS ADDITIONAL

PROCEDURAL STEP, TO MAKE SURE

THAT THE TRIAL JUDGE KNOWS THAT

THERE ACTUALLY WAS EVIDENCE TO

SUPPORT THE TERMINATION.

BECAUSE THIS IS A VERY

IMPORTANT RIGHT THAT'S AT STAKE

AND I DON'T THINK THAT THE A

TERMINATION SHOULD BE ENTERED

SOLELY JUST BECAUSE A PARENT

DIDN'T APPEAR.

IT JUST GIVES THE ADDED STEP,

THE DUE PROCESS.

IT DOESN'T TAKE MUCH TIME.

THE DEPARTMENT'S ALREADY THERE.

THE DEPARTMENT'S ALREADY IN THE

POSITION, SUPPOSEDLY,

PRESUMABLY, TO PRESENT THAT

EVIDENCE.

THAT EVIDENCE CAN BE PRESENTED SO

THE TRIAL JUDGE

IS CONVINCED --

>> LET'S SAY IT IS A GOOD IDEA,

OKAY?

LET'S JUST SAY IT'S A GOOD

IDEA.

THE QUESTION I HAVE HERE IS

THAT BECAUSE THE MOTHER DIDN'T

COME IN THIS CASE TO OBJECT TO

THE ADDITIONAL STEPS BEING

TAKEN, WHY SHOULD THIS CASE,

YOU KNOW, GO BACK FOR A NEW

HEARING ON BOTH TERMINATION AND

BEST INTERESTS?

AT WHICH NOW

THE MOTHER WOULD HAVE AN

OPPORTUNITY TO PARTICIPATE IN,

AND OBVIOUSLY THE FACTS ARE

GOING TO HAVE CHANGED, MAYBE

TO, MIGHT BE TO, IS THAT,

THAT'S WHAT THE SECOND DISTRICT

OPINION SAYS, IT GOES BACK FOR

BOTH PARTIES TO BE ABLE TO PUT

ON EVIDENCE OF BEST INTEREST?

IS IT THE MOTHER'S POSITION

THAT SHOULD HAPPEN AND THE

MOTHER SHOULD BE ABLE TO

PARTICIPATE IN ADVOCATING THAT

THIS PERMANENCY WITH FAMILY

THAT THE CHILD HAS BEEN IN,

SHOULD NOT BE THE OUTCOME FOR

THIS CHILD?

>> I THINK THAT IT IS CORRECT,

BECAUSE OF THE RECORD SORT OF

BEING MESSED UP, IT'S HARD TO

TELL, YOU KNOW, WHEN THE

MANIFEST BEST INTEREST

TESTIMONY ACTUALLY TOOK PLACE.

I MEAN YOU CAN TELL WHEN IT

TOOK PLACE BUT YOU CAN'T

CORRELATE THAT TO THE ORDER ON

TERMINATION.

>> BUT IF IT GOES BACK, ARE YOU

SAYING, IT GOES BACK AND THE

MOTHER GETS TO PARTICIPATE,

DOES THE MOTHER GET TO PUT ON

EVIDENCE THAT CONTRADICTS BOTH

THE TERMINATION AND, IF WE

AGREE WITH THE OTHER COURTS,

AND THE BEST INTERESTS?

>> I THINK YES.

>> BUT THAT'S WHAT, I DON'T

UNDERSTAND WHY, WHEN THE

DEFAULT AGAINST HER HAS NEVER

BEEN SET ASIDE, IT WAS, IT WAS,

THE TRIAL JUDGE DENIED IT, THE

SECOND DISTRICT CERTAINLY

DIDN'T SET THAT ASPECT OF THE

CASE ASIDE.

SO WHY SHOULD THE MOTHER, WHY

IS IT THAT CONSENT BY

NON-APPEARANCE STILL GOOD IN

THIS PROCEEDING?

>> I THINK WHAT, YOU KNOW, WHY,

WHY THERE WAS THE REVERSAL ON

THAT ISSUE IS A VERY NARROW

POINT.

SO THAT, IT'S NOT THAT UNCOMMON

FOR PARTIES TO STILL SHOW UP AT

HEARINGS AFTER THINGS

HAPPENED.

>> THE SHOWING UP AT HEARING IS

A DIFFERENT THING FROM

PARTICIPATING IN A HEARING.

>> SURE.

>> SHE GAVE UP HER RIGHT TO

PARTICIPATE IT SEEMS IT ME, AT

THE VERY LEAST, TERMINATION BY

CONSENT MEANS YOU ARE NO LONGER

ABLE TO PARTICIPATE.

I MEAN TO ME, THAT HAS TO BE AT

LEAST THE MINIMUM THAT THAT

REQUIRES.

AND SO, WHY IN THE WORLD DOES

SHE HAVE ANY RIGHT AT ALL TO DO

ANYTHING, EVEN IF IT DOES, HAS

TO GO BACK?

>> THE SECOND DISTRICT DIDN'T

REALLY ADDRESS THE ISSUE OF

WHETHER SHE GOT TO PARTICIPATE

OR NOT.

>> BUT IT'S YOUR POSITION SHE

WOULD NOT ONLY BE ABLE TO

PARTICIPATE, BUT THEN IF SHE

DIDN'T LIKE THE RESULT OF THAT,

ANOTHER ORDER OF TERMINATION,

THEN SHE COULD APPEAL THAT AND

WOULD BE ABLE TO COME IN AND,

YOU KNOW, RAISE WHATEVER, AND

HERE WE GO AGAIN.

WHAT I'M STILL STRUGGLING WITH,

IS HOW ALL OF THAT CAN BE

SQUARED WITH THAT LANGUAGE THAT

I WANTED YOU TO TELL ME WHAT IT

MEANT, AND THAT THE OTHERS HERE

HAVE, ON THE PANEL HAVE ALSO

REFERRED TO ABOUT THE FAILURE

TO PERSONALLY APPEAR BEING

CONSTITUTING A CONCEPT FOR

TERMINATION OF PARENTAL RIGHTS.

BECAUSE IT SEEMS LIKE YOU CAN

NOT, YOU CAN NOT SQUARE THAT

LANGUAGE WITH THE KIND OF

SCENARIO YOU THINK SHOULD TAKE

PLACE.

BECAUSE IF SOMEONE'S CONSENTED,

WHO ARE THEY TO SHOW UP AND

COMPLAIN ABOUT THE TERMINATION?

>> HONESTLY, YOU KNOW, THAT IS

A POSITION THAT LOOKING AT

THE STATUTORY LANGUAGE, IF

YOU'RE GOING TO LOOK AT (3)D

AS BEING A GROUND FOR

TERMINATION OF PARENTAL

RIGHTS AND DON'T HAVE TO LOOK

AT THE STATUTE AND 806 WHICH DEALS

SPECIFICALLY WITH THE GROUNDS,

THEN I WOULD HAVE COMPLETELY

AGREED WITH YOU.

BUT IF YOU'RE LOOKING AT IT AS

THOUGH (3)D NEEDS TO BE

SQUARED WITH 806 GROUNDS, AND

IT HAS TO BE ONE OF

THE GROUNDS, YOU HAVE GIVEN NO

EXPLANATION THAT I CAN, MAYBE I

MISSED IT.

>> OKAY.

>> BUT YOU HAVE GIVEN NO

EXPLANATION WHAT THAT LANGUAGE

ACTUALLY MEANS THAT WOULD HAVE

ANY KIND OF REAL WORLD

CONSEQUENCE.

>> WELL I WHAT I BELIEVE THERE

IS A GAP IN 806.

THERE IS A GAP AND WHAT SHOULD

BE IN 806 --

>> SO THE LEGISLATURE FORGOT TO

MAKE A REFERENCE BACK TO THIS

IN 806?

>> I THINK TO BE CLEAR SO

EVERYONE WOULD UNDERSTAND WHAT

IT WAS WE'RE SUPPOSED TO DO IN

THESE SITUATIONS, IF THERE WAS

AN ADDITIONAL GROUND LISTED.

>> BASICALLY YOU'RE SAYING

THIS, OKAY, I DON'T WANT TO

MISREPRESENT WHAT YOU'RE

SAYING, BUT, IT SEEMS LIKE

YOU'RE SAYING THIS IS

ESSENTIALLY BECAUSE OF THE

CONTEXT IN WHICH IT APPEARS

THIS IS NO MORE THAN INK BLOT,

REALLY HAS NO MEANING?

>> NO, THAT'S NOT WHAT I'M

SAYING.

>> WHAT IS THE MEAN?

>> I'M SAYING THE CONSENT SET

FORTH IN (3)D DOES NOT EQUATE

TO THE --

>> I UNDERSTAND WHAT IT DOESN'T

DO.

WHAT DOES IT DO?

>> MAY I FINISH?

>> SURE.

>> IT DOESN'T FIT IN WITH

801.1-A DEALING WITH WRITTEN

SURRENDERS.

THEREFORE IT HAS TO FIT IN WITH

ONE OF AT OTHER GROUNDS IN 806.

ALL THE OTHER GROUNDS IN 806

ARE INVOLUNTARY GROUND.

>> I GUESS MAYBE, I'M GOING TO

LOOK VERY CAREFULLY AT THIS,

BECAUSE I RESPECT YOU ARE FAR

MORE FAMILIAR WITH THIS. I

GUESS I'M NOT SURE I ACCEPT THE

FACT THAT THEY, IN TERMS OF

READING THEM, THAT YOU'VE GOT

TO READ THE STATUTE THAT SAYS

THERE IS CONSENT TO TERMINATION

ENTIRE MATERIA.

AS OPPOSED TO GROUNDS, BY THEM

NOT APPEARING THAT GROUNDS,

THAT STATUTE, THEY HAVE

CONSENTED TO THE GROUNDS SET

FORTH IN THE PETITION FOR

TERMINATION.

NOW WE GO ONTO THE OTHER

STATUTE THAT DEALS WITH BEST

INTEREST.

ISN'T THAT A MORE LOGICAL WAY

TO READ THOSE TWO TOGETHER?

>> THE PROBLEM THOUGH IS THAT

(3)D DOESN'T SAY, IT SAYS,

SHALL, EXCUSE ME, SHALL CONSTITUTE

CONSENT FOR TERMINATION

OF PARENTAL RIGHTS.

IT DOESN'T DEAL WITH THE

ALLEGATIONS IN THE PETITION.

>> IT DOESN'T NEED TO BECAUSE

IT IS A DEFAULT.

WE GO --, YOU KNOW. AND --

>> I CAN UNDERSTAND WHY YOU'RE

SAYING (3)D COULD BE SEPARATE.

>> YOU HAVE OFFERED NO

EXPLANATION OF WHAT THIS MEANS.

YOU SAID WHAT IT DOESN'T MEAN.

BUT I CAN NOT TELL, MAYBE,

AGAIN, FORGIVE ME IF I MISSED

IT, BUT YOU HAVE NOT SAID WHAT,

WHAT THIS MEANS IN ANY WAY THAT

WOULD GIVE IT AN IMPACT IN THE

REAL WORLD.

SO THE LEGISLATURE SAID

SOMETHING THERE.

WE'RE GOING TO, BECAUSE WE'RE,

IT IS CONFUSING WE DISREGARD

IT, SEEMINGLY?

>> NO. AND I'M NOT SAYING THAT.

WHAT I'M SAYING (3)-D, TRYING

TO MAKE IT SQUARE INTO 806.

TO ME THOSE ARE THE GROUNDS OF

TERMINATION OF PARENTAL RIGHTS.

IF IT DOESN'T FIT INTO 1-A THE

ONLY VOLUNTARY GROUND THEN IT

MUST BE A INVOLUNTARY GROUND.

BECAUSE --

>> WHAT HAS THAT GOT TO DO WITH

YOUR CLIENTS CASE?

>> THE REASON IT, WE DID NOT

SEEK REVIEW HERE, THE REASON,

IF YOU AGREE WITH ME, SHE WOULD

HAVE THE OPPORTUNITY TO GO BACK

AND HAVE A EVIDENTIARY HEARING.

>> WHY SHOULD SHE HAVE AN

OPPORTUNITY?

SHE HAD, DIDN'T SHE ARGUE

ALREADY ABOUT WANTING TO SET IT

ASIDE?

>> YES.

>> THE TRIAL JUDGE SAID NO.

>> YES.

>> YOU DID NOT COME, THIS IS

CONSENT.

WHY IN THE WORLD WOULD WE GIVE

HER ANOTHER OPPORTUNITY TO COME

INTO COURT?

>> AND ONLY REASON WOULD BE

BASED UPON STATUTORY

CONSTRUCTION.

WHAT IS THE RIGHT THING TO DO.

AND IF YOU AGREED WITH THE

THIRD AND THE FIFTH DISTRICTS

THE WAY THEY CONSTRUE THE

STATUTE --

>> BUT EVEN THE WAY THEY

CONSTRUE THE STATUTE DOES NOT

REQUIRE YOUR CLIENT TO

PARTICIPATE.

>> BUT THE THIRD AND THE FIFTH

DISTRICTS ALLOW COUNSEL TO BE

THERE AND TO --

>> AND WASN'T COUNSEL THERE AT

THIS HEARING?

AT THE ORIGINAL HEARING, THE

AUGUST 20th HEARING, DIDN'T HER

ATTORNEY SHOW UP?

HE WAS THERE, HE OR SHE.

THE ATTORNEY FOR YOUR CLIENT

WAS AT THE AUGUST 20th HEARING,

WHICH IS THE ONE WHERE SHE DID

NOT SHOW UP, WHICH RESULTED IN

THE CONSENT FOR TERMINATION.

>> YOU ARE CORRECT.

>> OKAY.

>> I MEAN, I BELIEVE, WE

UNDERSTAND ALL OF YOUR

ARGUMENTS.

AND I WANT TO THANK ALL OF YOU

FOR YOUR, YOU HAVE HAD MORE

THAN YOUR TIME ALREADY.

AND SO --

>> [INAUDIBLE]

>> THE COURT WILL NOW BE IN

RECESS.

THANK YOU VERY MUCH.

>> PLEASE RISE.

SUPREME COURT IS NOW ADJOURNED.