          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                          No. 1D18-49
                 _____________________________

Y.G., Mother of A.P., a Child,

    Appellant,

    v.

DEPARTMENT OF CHILDREN AND
FAMILIES,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
David Gooding, Judge.

                           May 3, 2018


WINOKUR, J.

     Y.G. appeals the trial court’s order terminating her parental
rights to her son A.P. Because the trial court should have
continued the trial after Y.G. consented to A.P.’s adoption, we
reverse.

                          I. BACKGROUND

     On September 14, 2017, the Department of Children and
Families (DCF) sheltered A.P., an infant less than two weeks old.
On October 9, Y.G. executed a consent to adoption and
relinquishment of rights in favor of the maternal grandfather.
DCF then filed an adoption case plan and expedited petition for
termination of parental rights (TPR) as to Y.G. On October 31,
the grandfather filed Y.G.’s consent to adoption and a notice of
appearance as an intervenor, and DCF filed an approved relative
home study on the grandfather.

     Y.G. filed a motion for continuance of the TPR trial, arguing
that she had a right to private placement of A.P., she consented
to his adoption, an approved relative home study of the
grandfather had been filed, and the grandfather would soon file a
motion to intervene once an adoption home study was completed.
At a hearing November 28, the trial court declined to wait on a
potential motion to intervene to be filed, denied the motion to
continue, and set the single-parent TPR trial for December 4.

    On December 3, the grandfather filed a motion to intervene
and transfer custody of A.P. He attached an adoption home study,
which was approved on December 1.

     Before trial the next day, DCF and the guardian ad litem
(GAL) stated that the grandfather’s motion was sufficient, but
objected, arguing that a transfer of custody was not in A.P.’s best
interests. The trial court stated that it would “take in the motion”
during “the best interest part” of the TPR trial. The grandfather
moved to continue the trial so he could participate in discovery,
understand the basis of the objection, and procure witnesses. The
trial court denied the motion to continue. The grandfather
declined the invitation to present his motion as part of the TPR
trial.

     Y.G. then renewed her motion to continue on the basis of the
recently-filed motion to intervene. She argued that she had a
right to consent to adoption, and the grandfather’s motion to
intervene required a hearing as to A.P.’s best interests relevant
to the grandfather’s adoption. Additionally, she argued that a
brief continuance would not prejudice A.P., as his permanency
would not be affected; permanency would not be achieved until
the father’s rights were terminated, which would not occur until
at least mid-December due to DCF’s intended service of notice by
publication. The trial court denied Y.G.’s motion to continue and
conducted the TPR trial, after which it terminated Y.G.’s
parental rights to A.P.



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                       II. CONSENT TO ADOPTION

     Section 63.082, Florida Statutes, governs proceedings related
to a parent’s consent to adoption.

    If a parent executes a consent for adoption of a minor
    with an adoption entity or qualified prospective adoptive
    parents and the minor child is under the supervision of
    the department . . . , but parental rights have not yet
    been terminated, the adoption consent is valid, binding,
    and enforceable by the court.

§ 63.082(6)(a), Fla. Stat. Once the parent executes a consent for
adoption, the trial court must permit the adoption entity to
intervene in the dependency case. § 63.082(6)(b), Fla. Stat. The
“dependency court shall promptly grant a hearing to determine
whether the adoption entity has filed the required documents to
be permitted to intervene and whether a change of placement of
the child is in the best interests of the child.” § 63.082(6)(c), Fla.
Stat. “In determining whether the best interests of the child are
served by transferring the custody of the minor child to the
prospective adoptive parent,” the trial court must consider eight
factors, including the “right of the parent to determine an
appropriate placement for the child.” § 63.082(6)(e), Fla. Stat. If
the trial court determines that the prospective adoptive parents
are properly qualified and adoption is in the best interests of the
child, the court must transfer custody of the child to the
prospective adoptive parents. § 63.082(6)(d), Fla. Stat. 1


    1  The parties appear to have proceeded on the basis that the
grandfather, or his counsel, was an “adoption entity” for purposes
of section 63.082(6)(b)-(d). See § 63.032(3), (10), & (18), Fla. Stat.
(defining “adoption entity” to include “intermediary” and defining
“intermediary” as “an attorney who is licensed or authorized to
practice in this state and who is placing or intends to place a
child for adoption . . . .”). We presume, without deciding, that the
grandfather or his counsel was an adoption entity, because it was
not addressed below and because it is not relevant to the question
of whether the trial court abused its discretion in denying Y.G.’s
motion to continue.

                                  3
     Appellate courts have addressed compliance with section
63.082 in the context of dependency proceedings when consent to
adoption has been given before parents have lost their parental
rights. See E.Q. v. Fla. Dep’t of Children & Families, 208 So. 3d
1258, 1261 (Fla. 3d DCA 2017) (holding that when a trial court
considers a motion to transfer a dependent child, it “must
consider the wishes of the parent or parents, if their parental
rights have not been terminated, and weigh those wishes with
the other [] factors articulated in section 63.082(6), which relate
to the best interests of the child”); R.L. v. W.G., 147 So. 3d 1054
(Fla. 5th DCA 2014) (“The mother’s choice of placement with a
prospective parent when her parental rights were still intact was
an exclusively parental decision. The decision was subject only to
the trial court determining that the prospective parent was
properly qualified and that the adoption was in [the child’s] best
interests.”); In re S.N.W., 912 So. 2d 368, 374 (Fla. 2d DCA 2005)
(reversing because the trial court erred in putting aside the
mother’s consent to adoption and denying the adoption entity’s
motion to intervene). In deference to the parent’s “constitutional
right to the care, custody, and control of their children,” a trial
court may not compare the selected prospective adoptive parents
with other placements the court or DCF might otherwise choose.
In re S.N.W., 912 So. 2d at 373 n.4; see also In re Adoption of
K.A.G., 152 So. 3d 1271, 1275 n.4 (Fla. 5th DCA 2014) (agreeing
that courts may not make a comparative assessment of
placements if the parents have selected prospective adoptive
parents).

     Here, the question is not whether the trial court erred in
ruling on the motion to intervene, as a ruling was never issued.
After the grandfather filed his motion to intervene, a best-
interests hearing pursuant section 63.082(6) was required.
Because none of the parties were prepared to proceed on a
hearing as to the grandfather’s adoption, Y.G. moved to continue
the previously-scheduled TPR trial.

                 III. MOTION FOR CONTINUANCE

    “Whether to grant or deny a motion to continue a trial is a
matter that rests within the sound discretion of the trial judge.”
Shands Teaching Hosp. & Clinics, Inc. v. Dunn, 977 So. 2d 594,

                                4
599 (Fla. 1st DCA 2007). This discretionary decision is given even
greater deference than others. Id. “However, there are indeed
cases in which the appellate court will have no alternative but to
reverse, because the injustice caused by the denial of the motion
outweighs the judicial policy of deferring to the trial judge.” Id.

     As discussed in Part II, Y.G.’s consent was “valid, binding,
and enforceable,” and the trial court was required to hold an
evidentiary hearing to determine the best interests of A.P. in
relation to the grandfather’s potential adoption. Due to the recent
filing of the grandfather’s motion to intervene, the parties were
not prepared to hold this best interests hearing when they
arrived for the scheduled TPR trial on December 4.

     In considering whether the trial court abused its discretion
in denying a motion for continuance, appellate courts must
consider three factors: 1) whether denial of the motion creates
injustice for the movant; 2) whether the cause of the request was
foreseeable or due to dilatory practices; and 3) the potential of
prejudice or inconvenience to opposing parties. See Garner v.
Langford, 55 So. 3d 711, 714 (Fla. 1st DCA 2011) (quoting
Fleming v. Fleming, 710 So. 2d 601, 603 (Fla. 4th DCA 1998)); see
also C.J. v. Dep’t of Children & Families, 756 So. 2d 1108, 1109–
10 (Fla. 3d DCA 2000) (identifying best interests of the child and
fairness to the parents as primary concerns).

     Upon review, we conclude that the trial court abused its
discretion in denying Y.G.’s motion to continue the TPR trial. As
to the first factor, the denial created injustice for the movant.
While Y.G.’s parental rights remained intact, she consented to
the adoption of A.P. by his grandfather. Y.G.’s right to select
adoptive parents, though not absolute and to be considered with
other factors, is significant, and she was deprived of it. Second, no
dilatory practices are demonstrated. The week before the trial
was scheduled, Y.G. moved for a continuance, stating that the
grandfather would soon file a motion to intervene when an
adoptive home study was completed. 2 Shortly after the trial court


    2  This delay stems from the grandfather’s counsel’s apparent
belief that an adoptive home study (in addition to the relative
home study) was required under section 63.082(6)(b), Florida
                                 5
denied the motion, the home study was completed, the
grandfather moved to intervene, and Y.G. renewed her motion.
While this renewed motion was foreseeable, Y.G. put the trial
court on notice of the impending motion the week before trial.
Lastly, there would be little, if any, apparent prejudice to DCF,
GAL, or A.P. if the trial court were to grant the continuance. As
DCF was proceeding on a single-parent TPR petition, A.P. would
not achieve permanency for at least almost two weeks, when DCF
intended to provide notice by publication to A.P.’s father. DCF
and GAL could choose to present evidence in a best-interest
hearing in opposition to a transfer of custody, but any effort
required to do so creates little prejudice in relation to Y.G.’s right
to select the adoptive parents of her child. After consideration of
the evidence and interests presented, the factors weigh in favor of
granting Y.G.’s motion for continuance.

                       IV. CONCLUSION

     While it is understandable that a trial court would deny a
motion to continue filed the day before trial, the trial court should
have granted Y.G.’s motion to continue the TPR trial and
scheduled proceedings consistent with section 63.082(6). For
these reasons we REVERSE the order terminating Y.G.’s parental
rights, and REMAND for proceedings consistent with this opinion.

MAKAR, J., concurs; WINSOR, J., dissents with opinion.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

WINSOR, J., dissenting.

     We should reverse a trial court’s decision denying a
continuance “only in very rare situations,” Shands Teaching

Statutes. There is no evidence that this delay was intended for
delay’s sake.

                                  6
Hosp. & Clinics, Inc. v. Dunn, 977 So. 2d 594, 599 (Fla. 1st DCA
2007)—and only when “a palpable abuse of discretion . . . clearly
and affirmatively appear[s] in the record,” Geralds v. State, 674
So. 2d 96, 99 (Fla. 1996). This is not one of those situations.

     Appellant wanted her father to adopt her infant child. So, on
October 9, 2017, she executed a consent to adoption. The
grandfather was soon aware of the consent, which he filed with
the court on October 31. Yet the grandfather waited nearly five
weeks more before submitting a motion to intervene the night
before the final hearing. (The motion was filed with the clerk the
next day.)

    The morning the final hearing began, the mother moved for
a continuance, which the court denied. The mother now argues
that the court should have continued the matter so that the
grandfather (who makes no appearance on appeal) could pursue
his intervention motion at some unspecified future time. The
grandfather’s counsel was there, and he explained that the
grandfather was not yet ready to argue his motion, that he
needed unspecified discovery before he could show that his
adopting the child would be in the child’s best interests.

     On the particular facts we face, I cannot agree that the trial
court acted beyond the bounds of its wide discretion. See Geralds,
674 So. 2d at 99. Even if I were convinced I would have handled
the continuance request differently, I see no basis to reverse. See
Neville v. McKibben, 227 So. 3d 1270, 1273 (Fla. 1st DCA 2017)
(“There is no abuse of discretion where reasonable persons could
differ as to the trial court’s ruling.”).

                 _____________________________


Sarah Rahn Thomas, Assistant Regional Conflict Counsel, Office
of Criminal Conflict and Civil Regional Counsel, Jacksonville, and
Crystal M. Frusciante, Assistant Regional Conflict Counsel, Office
of Criminal Conflict and Civil Regional Counsel, Region One,
Sunrise, for Appellant.




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Ward L. Metzger, Appellate Counsel, Department of Children
and Families, Jacksonville, for Appellee; David P. Krupski,
Appellate Counsel, Guardian ad Litem Program, Sanford.




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