               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                         IN THE DISTRICT COURT OF APPEAL

                                         OF FLORIDA

                                         SECOND DISTRICT


In the Interest of M.G. and A.B.,        )
children.                                )
                                         )
                                         )
A.D.,                                    )
                                         )
              Appellant,                 )
                                         )
v.                                       )    Case No. 2D18-4211
                                         )
DEPARTMENT OF CHILDREN                   )
AND FAMILIES and GUARDIAN                )
AD LITEM PROGRAM,                        )
                                         )
              Appellees.                 )
                                         )

Opinion filed April 26, 2019.

Appeal from the Circuit Court for
Pinellas County; Kimberly Todd, Judge.

Ryan Thomas Truskoski of Ryan
Thomas Truskoski, P.A., Orlando, for
Appellant.

Bernie McCabe, State Attorney, and
Leslie M. Layne, Assistant State
Attorney, Clearwater, for Appellee
Department of Children and Families.

Thomasina Moore and Joanna
Summers Brunell, Appellate Counsel,
Tallahassee, for Appellee Guardian ad
Litem Program.
SMITH, Judge.

              A.D. appeals the final judgment terminating her parental rights to her

children, M.G. and A.B. Because the trial court abused its discretion in refusing to allow

A.D. to appear by telephone and explain her absence from the advisory hearing, we

reverse.

              At the advisory hearing, A.D.'s attorney advised the court that A.D. was

not physically present because she was having car troubles and requested that she be

allowed to appear by phone. The Department of Children and Families (Department)

maintained that there was a pending warrant for A.D.'s arrest in a criminal case, giving

her a motive not to appear, and objected to the request to appear by phone. The court

refused the request. After the bailiff sounded the halls to no avail, the Department

moved for a consent by default to be entered based on A.D.'s nonappearance. A.D.'s

counsel objected, reiterating that A.D. was having car troubles and that A.D. wanted to

go to trial and defend against the termination of parental rights petition. The court

announced that it was entering a consent by default but would entertain a motion to set

aside the default if filed within ten days. A.D. filed a motion the next day. Without ruling

on the motion,1 the court entered a final judgment terminating A.D.'s parental rights.



              1After  this appeal commenced, the trial court held an evidentiary hearing
and entered an order on the motion. However, the trial court lacked jurisdiction to do so
while this appeal was pending. See, e.g., Beyel Bros. v. Lemenze, 720 So. 2d 556, 558
(Fla. 4th DCA 1998) ("[T]he filing of the notice of appeal divested the trial court of
jurisdiction to hear a motion that pertained to the underlying final judgment."). Although
Florida Rule of Appellate Procedure 9.146(d) provides that a trial court retains
jurisdiction "to conduct judicial reviews or other proceedings related to the health and
welfare of the child pending appeal," the postjudgment proceedings do not fall within the
scope of this rule. As such, the trial court's order on the motion to set aside is a nullity.
See Haines v. State, 805 So. 2d 972, 973 (Fla. 2d DCA 2001). Although the order on
the motion to set aside is not within the scope of review in this appeal, see Fla. R. App.

                                            -2-
              We begin this analysis by recognizing that the "interest of parents in the

care, custody, and control of their children . . . is perhaps the oldest of the fundamental

liberty interests" in American law. D.M.T. v. T.M.H., 129 So. 3d 320, 334 (Fla. 2013)

(quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). "Moreover, the Supreme Court

[has] stated that the fundamental liberty interest a parent has in the custody and care of

his or her child 'does not evaporate simply because they have not been model parents

or have lost temporary custody of their child to the State.' " J.B. v. Fla. Dep't of Children

& Family Servs., 768 So. 2d 1060, 1064 (Fla. 2000) (citing Santosky v. Kramer, 455

U.S. 745, 753 (1982)).

              Under section 39.801(3)(a), Florida Statutes (2018), parents must be

notified of an advisory hearing on a petition to terminate their parental rights, and the

notice must meet certain requirements. The advisory hearing is required for the

purpose of determining whether parents will consent to termination, advising parents of

their right to counsel, appointing counsel and, if necessary, a guardian ad litem for

children, and ultimately setting the adjudicatory hearing. See § 39.808, Fla. Stat.

(2018). The failure of a parent to personally appear at the advisory hearing constitutes

consent by that parent for termination of their parental rights. § 39.801(3)(d). This

default provision is necessary to ensure that a petition is not defeated by the parent's

neglect of the proceeding and enables trial courts to bring the case to conclusion if the




P. 9.110(h), 9.146(a), we note that the preferred procedure would have been for the trial
court to rule on the motion prior to entering the final judgment. See, e.g., T.L.D. v. Dep't
of Children & Family Servs., 883 So. 2d 910, 914 (Fla. 2d DCA 2004). Alternatively, the
parties could have requested that this court relinquish jurisdiction to the trial court to rule
on the motion and, upon entry of the order, filed a separate notice of appeal. See R.W.
v. Dep't of Children & Families, 164 So. 3d 15, 17-18 (Fla. 1st DCA 2015).

                                             -3-
parent elects not to participate. J.B., 768 So. 2d at 1067. But "courts should ordinarily

refrain from determining a termination of parental rights by default when an absent

parent makes a reasonable effort to be present at a hearing but is prevented or delayed

by circumstances beyond the parent's control." C.B. v. Dep't of Children & Family

Servs., 990 So. 2d 520, 523 (Fla. 2d DCA 2008) (quoting T.L.D. v. Dep't of Children &

Family Servs., 883 So. 2d 910, 914 (Fla. 2d DCA 2004) (holding public policy favors an

adjudication on the merits over a default when balancing the rights of a parent)).

              It is undisputed that A.D. was served with notice of the advisory hearing

and was represented by counsel and that the court had previously appointed a guardian

ad litem for the children. All that remained at the advisory hearing was to set the matter

for an adjudicatory hearing. This was not a case where the parent elected not to

participate by their failure to appear at the advisory hearing. Instead, the attorney for

A.D. advised the court of A.D.'s desire to appear at the advisory hearing via telephone

due to car troubles and advised the court that she wanted to proceed to trial and contest

the termination proceedings.

              We have previously held it was error for a trial court to default a parent

and terminate parental rights based on a parent's failure to personally appear where the

parent's counsel appeared at the hearing, advised the court of the extenuating

circumstances of the parent's absence, and requested permission for the parent's

appearance by telephone. See L.S. v. Dep't of Children & Family Servs., 995 So. 2d

516, 517 (Fla. 2d DCA 2008) (concerning a parent's failure to appear at an adjudicatory

hearing); accord F.M. v. Dep't of Children & Families, 95 So. 3d 378, 381-82 (Fla. 3d

DCA 2012); B.H., Sr. v. Dep't of Children & Families, 882 So. 2d 1099, 1100-02 (Fla.




                                            -4-
4th DCA 2004). Under the circumstances presented in this case, the trial court abused

its discretion in terminating A.D.'s parental rights based on her nonappearance, without

affording her an opportunity to appear by phone for the limited purpose of explaining her

absence. After affording such an opportunity, the court could have made a

determination on the record as to the reasonableness or genuineness of the

explanation. See F.M., 95 So. 3d at 382. However, leaving this inquiry for a later day—

after entering the final judgment terminating A.D.'s parental rights—was error.

Accordingly, we reverse the final judgment terminating A.D.'s parental rights and

remand for further proceedings consistent with this opinion.

             Reversed and remanded.



KELLY and VILLANTI, JJ., Concur.




                                          -5-
