872 So.2d 412 (2004)

R.S., the Mother, Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.

No. 4D03-3601.

District Court of Appeal of Florida, Fourth District.

May 5, 2004.

Pamela Wynn, Lake Worth, for appellant.

Jeffrey Dana Gillen of the Department of Children and Family Services, West Palm Beach, for appellee.

GUNTHER, J.

The parental rights of R.S. were terminated. R.S. raises multiple issues on appeal. We write to address only the issue of whether the trial court erred by terminating R.S.'s parental rights on a ground not pleaded in the termination petition. On that issue, we reverse.

The Department of Children and Families (DCF) filed a petition for termination of parental rights as to R.S. and her four children. In the petition, DCF stated five grounds for termination: Florida Statutes sections 39.806(1)(b), 39.806(1)(c), *413 39.806(1)(d)3., 39.806(1)(e), and 39.806(1)(f). During DCF's opening statement at the termination hearing, DCF requested termination on three grounds: 39.806(1)(b), 39.806(1)(b)3. [presumably 39.806(1)(d)3.], and 39.806(1)(c).

At the conclusion of the termination hearing, the trial court made findings supporting termination under 39.806(1)(d)1. and 39.806(1)(e). In the written order of termination, the trial court indicated that it was terminating R.S.'s parental rights under 39.806(1)(d) and 39.806(1)(e), incorporating findings relevant to both 39.806(1)(d)1. and 39.806(1)(d)3., as well as 39.806(1)(e).

R.S. contends that it was error for the trial court to terminate her parental rights on a ground, 39.806(1)(d)1., not pleaded in the termination petition. See In the Interest of A.D.J., 466 So.2d 1156, 1163 (Fla. 1st DCA 1985)(recognizing the principle in the context of permanent commitment). We agree. The termination petition does not allege 39.806(1)(d)1. as a ground for termination, nor did DCF seek termination under this ground during its opening statement or by amendment of the petition. Additionally, the termination was not tried by consent. Nonetheless, the trial court terminated R.S.'s parental rights on this ground. This fact is not altered by the termination order's focus on 39.806(1)(d) as a whole where the un-pleaded ground of 39.806(1)(d)1. was considered and incorporated by the trial court. Such is error because it is a denial of the procedural due process rights of notice and a fair hearing. See Wood v. State, 544 So.2d 1004, 1006 (Fla.1989)("adequate notice and meaningful hearing" required before termination of substantive rights). R.S. was unaware that her parental rights were subject to termination at the hearing on the ground not pleaded, and consequently, she was unprepared to rebut the ground, especially where the ground was not even mentioned until the trial court's ruling.

Therefore, on this issue, we reverse and remand for the entry of a termination order removing all findings and references relevant to 39.801(d)1. However, because another ground, 39.806(1)(e), supports termination, the ultimate outcome of this case is not impacted by the need to correct this error.

We find none of the other issues raised by R.S. to be persuasive. As such, we affirm on all other grounds not addressed in this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

FARMER, C.J., and HAZOURI, J., concur.

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Cited by 20 opinions

In this collection (20)

M.M.W. v. J.W. 3D21-2419 · 3rd DCA 2022Reversed & remanded Termination on the father's private petition reversed because the threat ground was unpled, violating due process, and chronic substance abuse was not proven.
P.C. v. Department of Children & Families 4D21-1591 · 4th DCA 2021Affirmed Termination affirmed on abandonment and incarceration grounds, but the case plan noncompliance ground was struck because the incarcerated father completed the tasks available to him.
M.J. v. Department of Children & Families 4D21-0819 · 4th DCA 2021 cites it 2 timesAffirmed Termination affirmed on two grounds; the material breach ground was struck because it was not pled in the petition, which does not change the outcome.
A.M. v. D.S. 1D19-1855 · 1st DCA 2021Reversed & remanded Termination and permanent guardianship reversed because a Chapter 63 adoption-related case was decided under Chapter 39 without notice, violating the father's due process.
B.T. v. Department of Children & Families 1D19-2788 · 1st DCA 2020Affirmed Termination affirmed: the parents failed to preserve their objection to unpleaded grounds in the order, and missing rule 8.530 notice caused no prejudice.
X.T. v. Department of Children & Families 1D19-2974 · 1st DCA 2020Affirmed Termination affirmed because the parents did not preserve objections to unpleaded grounds in the order, and the missing ineffective-counsel notice caused no due process violation.
Q.L. v. Department of Children & Families 4D19-0526 · 4th DCA 2019Reversed Termination reversed because the mother completed all services and findings of ongoing domestic violence and housing instability were unsupported or stale.
K.C. v. Department of Children & Families 4D18-2345 · 4th DCA 2018Affirmed Termination affirmed on threat and egregious-conduct grounds; remanded to remove a dismissed aggravated-abuse ground that was improperly included in the judgment.
M.S. v. Department of Children & Families 2D15-5005 · 2nd DCA 2016Affirmed Termination affirmed on the incarceration ground because the mother had no relationship with the child; four other grounds lacked evidence; ineffective-assistance motion denied.
D.W.Q. v. A.B. 5D14-4099 · 5th DCA 2015Reversed & remanded Termination reversed because it rested on an unpleaded ground, lacked manifest best interests findings, and may not have considered a recorded child interview.
J.E. v. Department of Children & Families 4D13-1191 · 4th DCA 2013Affirmed Termination affirmed: the father abandoned the child through sporadic visits and nonpayment, and failed his case plan, never testing negative for marijuana.
C.B. v. Department of Children & Families 5D09-2485 · 5th DCA 2010Affirmed Termination affirmed on other grounds, but the out-of-home placements ground as to one child was struck because DCF never pleaded it.
In re D.J. 2D08-793 · 2nd DCA 2009 cites it 2 timesAffirmed Dependency adjudication affirmed because the mother lacked training and equipment for the infant's medical needs; unpleaded medical neglect was tried by consent despite DCF's misconduct.
Z.M. v. Department of Children & Family Services 1D07-5916-2 · 1st DCA 2008 cites it 3 timesReversed & remanded Termination reversed because the court relied on an unpleaded ground, appeared to use a lax evidentiary standard, and made no findings on the pleaded ground.
Z.M. v. Department of Children & Family Services 1D07-5916 · 1st DCA 2008 cites it 3 timesReversed & remanded Termination reversed because the court relied on an unpleaded ground, appeared to use a lax evidentiary standard, and made no findings on the pleaded ground.
W.S. v. Department of Children & Families 4D07-382 · 4th DCA 2007 cites it 2 timesAffirmed Termination affirmed for the father's case plan failure; the unpleaded breach was tried by implied consent and incarceration did not excuse his inaction.
J.C. v. Department of Children & Families 4D06-5029 · 4th DCA 2007Affirmed Termination affirmed on two other grounds, but the abandonment ground was struck because DCF never pleaded it in the petition.
P.S. v. Department of Children & Families 1D06-2793 · 1st DCA 2006Reversed & remanded On DCF's concession, termination of the mother's rights was reversed because the father's termination rested on an unpleaded ground, undermining one-parent termination.
K.S. v. Department of Children & Families 5D06-828 · 5th DCA 2006Affirmed Termination affirmed; the egregious conduct ground and case plan ground as to the younger child were stricken; the unpleaded threat ground was tried by consent.
T.M. v. Department of Children & Families 4D04-4750 · 4th DCA 2005Reversed & remanded Termination reversed: no evidence of threat to the child, no services were offered to the incarcerated father, and abandonment was never pleaded.

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In Interest of A.D.J. 1DAV-422 · 1st DCA 1985

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R.S. v. Department of Children & Families872 So. 2d 412 (Fla. 4th DCA 2004) · 4D03-3601

R.S., the Mother, Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.

Cited by 20 opinions

In this collection (20)

Cites 1 opinion in this collection

R.S. v. Department of Children & Families872 So. 2d 412 (Fla. 4th DCA 2004) · 4D03-3601 Copy citation

R.S., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.

Cited by 20 opinions

In this collection (20)

Cites 1 opinion in this collection

R.S. v. Department of Children & Families872 So. 2d 412 (Fla. 4th DCA 2004) · 4D03-3601

R.S., the Mother, Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.