M.C., the Mother, Appellant, v. Department of Children and Families, et al., Appellees. (2026)

M.C., the Mother appeals a final judgment terminating her parental rights (the “TPR Judgment”) to I.C. (eight-year-old), S.K. (four-year-old), and L.K. (one-year-old). We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A); Fla. R. App. P. 9.146(a). The Mother challenges the trial court's denial of her motion for herself, and her witnesses, to appear remotely at trial. While the Department concedes the denial is error, the Guardian Ad Litem (the “GAL”) does not and contends that any such error is harmless. In either scenario, because the alleged error is a procedural defect that does not affect a substantive right, we are constrained to review for harmless error.¹ We find the alleged error is harmless because it did not contribute to the TPR judgment. This is because the Mother's proffered evidence — which the trial court credited — did not address other statutory termination grounds on which the trial court also relied. Thus, we decline to accept the Department's concession and affirm the TPR judgment.²

I. BACKGROUND

The timeline of events, to which the dissent makes no reference, is material to the resolution of this case:

• December 29, 2017: I.C. was born.

• May 2020: I.C. — 2 years old at the time — was sheltered.

• October 2021: I.C. was returned to Mother's custody.

• October 9, 2021: S.K. was born.

• April 2023: The Department of Children and Families (the “Department”) entered a safety plan for I.C. and S.K. Shortly after, the Parents fled to Orlando, evading child protective services’ contact attempts. A pick up order was entered for both children.

• June 2023: the Department took I.C. and S.K. into protective custody.

• September 2023: I.C. and S.K. are transferred to foster care.

• November 2023: The trial court found I.C. and S.K. dependent because Parents did not appear at hearing.

• April 2024: The Department filed a Petition for Termination of Parental Rights (“TPR Petition”) alleging abandonment and breach of the case plans.

• July 2024 – August 1, 2024: The Department filed affidavits of diligent searches for Parents. The Department tried contacting Mother at least twice but her telephone was disconnected.

• August 1, 2024: Parents appear in-person at a judicial review hearing.

• August 20, 2024: L.K., the third child, is born in Seattle. The Parents had never informed the Department or the Court that they had moved to Seattle sometime before this date.

• September 2024: The trial court entered an emergency order to take L.K. into custody

• October 2024: The Department picked up L.K. from Seattle and the trial court entered a shelter order noting Parents’ whereabouts had been unknown for months. The Department files an amended TPR petition to include L.K.

• November 2024: Parents once again appear in-person at an advisory hearing for the TPR petition. During this time, they were residing in Miami. Trial was set for February 2025.

• December 2024: Parents moved back to Seattle.

• February 2025: Parents filed motions for themselves and witnesses to appear remotely.

• March 26, 2025: Mother filed a motion for continuance which did not mention pregnancy or inability to travel. The trial was continued to June 17, 2025.

• May 19, 2025 - The Department filed a motion for its witness to testify via zoom. The Department's motion indicated that “[t]he parties do not agree that the witness, Lindsay Woke, may testify by audio-video communication technology.”

• June 3, 2025: The trial court denied the motions to appear remotely.

• June 11, 2025: Mother and the Department filed a joint motion for rehearing claiming all parties had agreed to hold trial remotely.

• June 13, 2025: Mother filed a second motion for continuance, informing the court that she is pregnant with her fourth child and was advised by doctor against traveling. The trial court denied the second motion for continuance and joint motion for rehearing.

• June 17, 2025: The Parents were present by Zoom and represented by in-person counsels. The trial court denied the Parties’ request to call the Parents as witnesses.

• June 18, 2025: The second day of trial, the Parents appeared again via zoom. While the trial court did not allow them to testify via Zoom, it did allow them to proffer their testimony.

• July 17, 2025: The trial court entered a final judgment terminating the Mother's parental rights on four different grounds wherein it accepted and credited the proffered testimony but found that the proffered testimony did not change the outcome.

Elaborating on the above timeline, the Mother is mother of three children: I.C., S.K. and L.K.; the Father is father of only S.K. and L.K. In May 2020, I.C. was sheltered when he was two years old. The trial court found I.C. dependent based on findings of the Mother's behavior, untreated mental health issues, and diminished protective capacities. After providing Mother with a case plan, the trial court closed the case in October 2021 with I.C. in the Mother's custody. Shortly after the case closure order, the Mother gave birth to S.K.

In April 2023, the Department implemented a safety plan with the family and paternal grandmother due to anticipated eviction, insufficient food, and environmental hazards in the home. After the safety plan was implemented, the Parents fled to Orlando and a pickup order was entered for I.C. and S.K. after the parents were evasive to child protective services’ contact attempts. As a result, in June 2023, the Department took I.C. and S.K. into protective custody.

In September 2023, the children were transferred to foster care where the Parents were granted twice weekly visits supervised by the Department. In November 2023, the trial court found the children dependent based on the Parents’ failure to appear at the hearing. Consequently, in December 2023, the court approved a case plan with the primary and concurrent goals of reunification and adoption. The Department provided the Parents with two sets of referrals for their case plan tasks in October 2023 and February 2024, respectively.

In April 2024, the Department filed a TPR Petition as to I.C. and S.K. alleging abandonment and material breach of the case plan by both Parents. The TPR Petition also alleged chronic substance abuse, Mother's lack of motivation to change behaviors, and that continual involvement in the parent-child relationship threatened the children regardless of services provided to Mother. The Department also Provided the Parents with a third set of referrals for their case plan tasks.

In July 2024, the Department filed affidavits of diligent searches for the Parents.³ On August 1, 2024, the Parents appeared in-person ⁴ at a judicial review hearing where the court found that each parent had “[m]ade no/minimal progress” on the case plan. On August 20, 2024, the third child, L.K., was born to the parents in Seattle, Washington. On September 20, the trial court entered an emergency order to take L.K. into custody based on the Parents’ open TPR case for I.C. and S.K. and their failure to engage in their case plan tasks. The Department picked up L.K. from Seattle in October. On October 7, 2024, the trial court entered a shelter order noting “[f]or months, the parents[’] whereabouts were unknown.”

On October 21, 2024, the Department filed an amended TPR Petition to add L.K. The Parents attended an advisory hearing in-person in November 2024, at which their attorneys entered their denials to the Petition. Trial was set for February 2025. In the December 3, 2024 Recommendation and Order on TPR Advisory Hearing, both Parents were “advised of the date, time and location of the TPR Trial Calendar Call and Adjudicatory Hearing,” and “ordered to personally appear in person (or by zoom only if the Judge permits) at that TPR Trial Calendar Call and Adjudicatory Hearing, and of the consequences of her failure to appear[.]”⁵

The February 2025 trial date was ultimately continued at the Parents’ request. In January 2025, the Parents filed motions for themselves, and their witnesses, to appear for trial on zoom. On May 19, 2025, the Department filed a motion for its witness to testify via zoom. The Department's motion indicated that “[t]he parties do not agree that the witness, Lindsay Woke, may testify by audio-video communication technology.”

On June 3, 2025, the trial court heard all three motions. The trial court stated that the Parents’ position was inconsistent:

[THE COURT]: I read all of the pending Motions. And what I read in the Motions is that the Defense doesn't want the Protective Investigator from Seattle to appear by Zoom, but the Mother and Father do want to appear by Zoom. That seems rather inconsistent.

Consequently, the trial court denied all three motions, holding “Everyone will be in-person, period.” Trial was set for June 17, 2025.

On June 11, the Mother and the Department filed an Amended Joint Motion for Rehearing Requested by All Parties (“Motion for Rehearing”), claiming “all of the parties have agreed to hold the trial hearings remotely.” On June 13, the trial court denied rehearing, explaining

The motion for rehearing is not accurately titled an “agreed” motion. One of the parents did in fact object to DCF's witness participating by zoom, so there was no agreement that DCF's witness could appear remotely. Moreover, the mother allegedly fled the jurisdiction to avoid giving birth here. It would be completely inequitable now for that mother to claim she cannot afford to return, as this case was already pending when she chose to leave the State.

On June 17, 2025, the first day of trial, the Parents were present by Zoom and represented by in-person counsels. The trial court noted the Parents’ failure to appear in person. The trial court permitted Mother to reiterate her position in the Motion for Rehearing and she noted that the parties had agreed to a remote trial. The trial court indicated that the decision to hold a remote trial was in the court's discretion. The trial court explained to Mother's counsel “you did not agree for the Department's witness to appear by Zoom.” Mother responded “that was a different, that was part of the Motion for Rehearing, was that we had different grounds, new grounds to rehear. Because we all agreed to hold it remotely.” In response, the court indicated it was not going to engage in an argument on a Motion for Rehearing it already ruled on. The trial proceeded on June 17, 2025 and the trial court denied the Department's request to call the Parents as witnesses.

On June 18, 2025, the second day of trial, the Parents appeared again via zoom. The Department indicated it would proceed with an “empty chair” trial. The case manager supervisor, Dominque Bradley, was assigned to the case from June 2023 until August 2024. She testified the Department accommodated the Parents by offering them one longer visit each week due to the Parents having difficulty attending their twice-weekly visitation with the children as ordered due to transportation issues. She testified that despite the accommodations, the Parents were not consistent in visitation and “would often be extremely late, like hours late. Or sometimes they would not show-up at all.” She testified that I.C. was aware of the parents not showing up and “[i]t would be specifically hurtful to him[.]” Bradley testified that she was unaware of the Parents ever providing financial support or clothing for the children, attending the Children's medical appointments, or calling to check on the Children's welfare.

Bradley also testified why the Department had to provide the parents with three sets of referrals during her tenure:

Because when the provider would try to engage with them, reach out to them, contact them, they were, either they would make an appointment and not show-up, or they would make several attempts to reach out to them, were unsuccessful. Until they would close the Referral.

At the time referrals were made, Mother's phone was operational.

During the summer of 2024, Bradley tried calling Mother at least twice but could never reach her because Mother's phone had been disconnected. The Parents never told Bradley that they had moved to Seattle at some point prior to August 20, 2024.

Sierra Stewart took over as case manager in August 2024. She testified that at this time, the Parents had stopped visiting the Children and the agency did not have any contact with the parents. After several days attempting to make contact, Mother then informed case management she was pregnant and that the Parents were living in Seattle. Stewart discussed the case plan with Mother on the phone, and Mother indicated she was willing to engage in services. She provided the Parents with a fourth set of referrals for services in Miami and tried to determine whether virtual services were possible. She also tried to link the parents with child protective service providers in Seattle.

Stewart testified that the Department sent someone to pick up L.K. after child protective services in Seattle had been notified that the Parents left L.K. in a facility with active substance users and registered sex offenders while they traveled to Miami for their dependency case. The Parents remained in Miami until around November or December 2024 and then went back to Seattle. They did not stay in contact with Stewart.

While the Parents were in Miami during the end of 2024, Stewart testified Mother's visits were “consistent,” however, the Father's were “sporadic.” She testified that the Parents had not provided any financial support or clothing to the children since August 2024. Around October 2024, Stewart made a set of referrals for the Parents while they were residing in Miami. Mother completed a Zoom parenting class in March 2025; Father began engaging in a parenting class as of June 9, 2025. Stewart testified that she received a report from a Seattle provider indicating Mother was engaging in individual therapy bi-weekly. Further, after Father engaged in parenting class, Father reported being employed and it appeared Father had stable employment and housing.

Guardian Ad Litem Ricardo Gentzsch testified he had been actively involved in the case since February 2024 and had been visiting the Children monthly. At trial, the GAL recommended termination of the Parent's rights as in all the Children's best interests. At the close of the Department's and GAL's evidence, the trial court permitted the Parents to proffer testimony and evidence they would have presented if they had personally appeared at trial as ordered. Mother's counsel proffered she had made efforts to complete the case plan and had a domestic violence certificate, a drug test, and a therapist's report. Father's counsel joined Mother's proffer.

At the time of trial, the case had been open for two years. The trial court found the Parents inexplicably left their children behind when moving to Seattle without informing the Department after the case had been open for more than a year. The trial court also found that the Department made five sets of referrals and attempted to help the Parents obtain services in Seattle. The trial court also found that neither Parent completed a substance abuse evaluation or individual therapy, and their visits were “either sporadic, entirely missed, [or] hours late.”

Finally, the court found that:

And even if the parents had been present, and even if I had accepted the testimony of the parents that had been proffered, at best it would have been too little, too late.

(emphasis supplied).

The trial court granted the TPR Petition and in doing so entered the TPR Judgment with detailed findings of four statutory grounds against Mother and two against Father:

• Section 39.806(1)(b), Florida Statutes (2024) (abandonment — both Parents);

• Section 39.806(1)(e)(1), Florida Statutes (2024) (continuing abuse, abandonment, or neglect as evinced by failure to substantially comply with case plan — both Parents);

• 39.806(1)(c), Florida Statutes (2024) (continuing involvement in parent-child relationship threatens children's well-being — Mother); and

• 39.806(1)(l), Florida Statutes (2024) (three or more out-of-home placements caused by parent — Mother).

The trial court found termination was in the Children's manifest best interests and was the least restrictive means to protect them from harm. The trial court also rejected the Parents’ claim of indigence because they “traveled to Miami twice recently when it was convenient for them.” The trial court also found that the Parents did not exhibit good faith in objecting to the Departments’ requests for remote appearances while demanding they be permitted to appear remotely. And the trial court expressly considered the parents’ proffer in the TPR Judgment:

The proffered testimony was essentially that the parents have now started in Seattle to perform a few of the tasks in their case plan and that the father is now working. The Court accepted this proffered testimony in full as if the parents had been present to testify. Yet this testimony merely bolstered the Department's argument that the parents, after almost two years, had still not completed the requirements of their case plans.

(emphasis supplied). This timely appeal followed.

Mother does not challenge the trial court's factual findings on multiple TPR grounds, nor that the termination of her parental rights was in the Children's best interests. Instead, she directs her arguments solely at the trial court's denial of her motion for remote appearance. She argues the trial court violated Florida Rule of Juvenile Procedure 8.255(e)(1) by denying her motion to appear remotely when all the parties allegedly agreed to a remote trial. Yet, she inexplicably does not argue — or even allege — that the outcome would have — or could have — been different had she been allowed to testify remotely.

II. ANALYSIS

Before a court can terminate parental rights, it must find the Department established the following by clear and convincing evidence: “(1) the existence of at least one statutory ground for terminating parental rights set forth in section 39.806(1); (2) termination is in the manifest best interest of the child; and (3) termination is the least restrictive means to protect the child from serious harm.” Dep't of Child. & Fams. v. L.W., 393 So. 3d 758, 764 (Fla. 3d DCA 2024). Once the trial court determines the Department meets this burden, its order “enjoys a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in evidentiary support.” S.A. v. Dep't of Child. & Fams., 338 So. 3d 403, 406 (Fla. 3d DCA 2022). With this in mind, “the standard of review is whether the trial court's judgment is supported by substantial and competent evidence.” C.G. v. Dep't of Child. & Families, 67 So. 3d 1141, 1143 (Fla. 3d DCA 2011). Proof of one statutory termination ground is sufficient to affirm. S.M.O. v. Dep't of Child. & Fams., 357 So. 3d 773, 777 (Fla. 3d DCA 2023).

Here, the Department concedes the trial court erred in denying the Parents’ motion to appear and present witnesses remotely at trial under Florida Rule Juvenile of Procedure 8.255(e)(1). The GAL does not. That said, any such error — which we need not weigh in on — amounts to a procedural defect that does not affect a substantive right. And the denial is harmless because it did not contribute to the final TPR judgment. Thus, we agree with the GAL and decline to accept the Department's concession.

Here, Mother argues the denial of her and her witnesses’ remote testimony under Rule 8.255(e)(1) is reversible error. Mother argues this alleged error deprived her of due process. Not so fast. We must first determine whether this alleged error rises to the level of depriving Mother of a substantive right—a structural error.⁶ It does not. This distinction is crucial to determining our appropriate standard of review.

In determining whether a harmless error analysis applies to undisputed error, the United States Supreme Court instructs that structural error, which is not subject to such analysis, is a limited class of constitutional error that “infect[s] the entire trial process, ․ and necessarily render[s] a trial fundamentally unfair.” Neder v. United States, 527 U.S. 1, 8 (1999) (quotations omitted); see also Tarrau v. State, 373 So. 3d 1236, 1237 n.1 (Fla. 3d DCA 2023) (“A structural error is a defect in the trial process itself, which deprives a defendant of a basic protection and is not susceptible to a harmless error analysis.”). Given that such error requires immediate reversal, the Supreme Court has “found an error to be ‘structural,’ and thus subject to automatic reversal, only in a ‘very limited class of cases.’ ” Johnson v. State, 53 So. 3d 1003, 1012 (Fla. 2010), as revised on denial of reh'g (Jan. 27, 2011) (citing Neder, 527 U.S. at 8). Judicial prudence dictates that we not create a new class of error here.⁷

Thus, “[b]efore we can act to remedy a due process violation, there must be a deprivation of a substantive right, not just a procedural defect.” B.T. v. Dep't of Child. & Fams., 300 So. 3d 1273, 1283 (Fla. 1st DCA 2020). Here, Mother fails to identify such a substantive deprivation.

Whether an erroneous denial of remote testimony under Rule 8.255(e)(1) is a structural error resulting in a deprivation of a substantive right is a matter of first instance. That said, consider Rule 8.255(e)(1)’s origin. In 2022, The Florida Supreme Court amended Florida Rule of Juvenile Procedure 8.255 to add subsection (e)(1), providing in pertinent part:

[E]videntiary proceedings must be conducted in person unless the parties agree that a proceeding should be conducted remotely or conducted in a hybrid format, or the court orders it upon good cause shown.

See In re Amend. to Fla. R. Juv. P., 356 So. 3d 685, 686 (Fla. 2022).

This is dispositive because it is well established law that the Florida Supreme Court lacks the authority to create substantive rights, only rules of practice and procedure. Cf. Art. V, § 2, Fla. Const. (authorizing the supreme court to “adopt rules for the practice and procedure in all courts”); accord Haven Fed. Sav. & Loan Ass'n v. Kirian, 579 So. 2d 730, 732 (Fla. 1991) (distinguishing between “substantive law, which is within the legislature's domain,” and “matters of practice and procedure,” over which the supreme court has “exclusive authority to regulate”); Boyd v. Becker, 627 So. 2d 481, 484 (Fla. 1993) (“While the Florida Constitution grants this Court exclusive rule-making authority, this power is limited to rules governing procedural matters and does not extend to substantive rights.”); Allen v. Butterworth, 756 So. 2d 52, 59 (Fla. 2000) (“Generally, the Legislature has the power to enact substantive law, while the Court has the power to enact procedural law.”)

Consequently, Rule 8.255(e)(1)’s requirement that evidentiary hearings be conducted remotely upon agreement or good cause is a matter of practice and procedure. Cf. Kirian, 579 So. 2d at 732 (quotation omitted) (“[P]ractice and procedure encompass the course, form, manner, means, method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion.”). It follows then the trial court's alleged erroneous denial of a remote proceeding under Rule 8.255(e)(1) — a matter of practice and procedure — did not deprive the Parents of a substantive right.

The dissent correctly notes that the right of a mother to raise her child is a fundamental liberty interest. Even so, the dissent overlooks the fact that the Mother's appeal here rests solely on the trial court declining to allow Mother to testify remotely under Rule 8.255(e)(1). That is not enough. The remote appearance and testimony requirement upon agreement is not itself a substantive right. “It could not be. The [Florida] supreme court does not have the authority to create substantive rights, only rules of practice and procedure.” B.T., 300 So. 3d at 1283–86 (Fla. 1st DCA 2020) (finding erroneous failure to abide by Florida Rule of Juvenile Procedure 8.530’s notice requirement was not structural error because “the notice requirement itself is not a substantive right” and affirming termination under harmless error standard).

Thus, Mother does not establish structural error subject to automatic reversal without harmless error review. That said, we are constrained to reviewing the alleged erroneous denial under Rule 8.255(e)(1) for harmless error. “Under the test for harmless error, ‘the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict.’ ” R.J. Reynolds Tobacco Co. v. Rey, 416 So. 3d 1205, 1212 (Fla. 3d DCA 2025); see also Philip J. Padovano, 2 Fla. Prac., Appellate Practice § 19:11 (2025 ed.) (“Because the error did not contribute to the result of the case, the appellate court will likely treat it as harmless.”).

In T.W. v. Dep't of Child. & Fams., our sister court found a procedural error — refusal of testimony without findings under Florida Rule of Juvenile Procedure 8.255(d)(2)(C) — was harmless. See 975 So. 2d 630, 632 (Fla. 4th DCA 2008). The court reasoned the “error in refusing the live testimony is harmless, where the court accepted the proffered testimony.” Id. at 632. Similarly, here, the alleged procedural error — declining to allow remote proceedings and testimony despite party agreement — at trial is harmless. This is because, here, like in T.W., the trial court credited the Parents’ proffered testimony.

Indeed, the ruling in T.W. applies with more force because, here, Mother's proffered testimony did not address abandonment or other statutory termination grounds. Accord id. The proffered testimony included belated efforts to complete the case plan, a domestic violence certificate, a drug test, and a therapist's report. At best, this testimony may have overcome the entry of a final judgment terminating Mother's rights under section 39.806(1)(e)(1) (failure to substantially comply with case plan). Though we need not reach that issue here because there are other grounds supporting termination.

Specifically, the trial court found Mother inexplicably left her children behind and moved to Seattle without telling anyone after the case had been open over a year; the Department made five sets of referrals and even tried to help the Parents obtain services in Seattle; neither Parent ever completed a substance abuse evaluation or individual therapy; and, visits were “either sporadic, entirely missed, [or] hours late.” Because the proffered testimony does not address these findings,⁸ the termination is supported by at least one statutory ground — section 39.806(1)(b) (abandonment).

Accordingly, the alleged error is harmless because there is no reasonable possibility it contributed to the termination verdict. See R.J. Reynolds, 416 So. 3d at 1212. The outcome would have been the same. Consequently, we are constrained to affirm.⁹ S.M.O., 357 So. 3d at 778 (“[B]ecause termination of the Mother's parental rights to D.G.C. is supported by at least one statutory ground, we affirm the termination order[.]”); J.D. v. Dep't of Child. & Fams., 338 So. 3d 1022, 1022 (Fla. 3d DCA 2022) (“Establishment of but one of the statutory grounds for termination by clear and convincing evidence is enough to affirm a [termination of parental rights] order.”).

III. CONCLUSION

In conclusion, the trial court's denial of Mother's motion for herself, and her witnesses, to testify remotely at trial is harmless. The alleged error is a procedural defect that does not affect a substantive right requiring automatic reversal.¹⁰ The alleged erroneous denial is harmless because it did not reasonably contribute to the TPR judgment. Termination would have been ordered notwithstanding Mother's proffered evidence — which the trial court credited — being introduced because it did not address other statutory termination grounds. Nor does Mother challenge the extensive findings establishing abandonment under section 39.806(1)(b). Establishment of but one of the statutory grounds for termination by clear and convincing evidence is enough to affirm a termination order. That evidence is present in the record before us. Thus, we decline to accept the Department's concession, and we affirm the TPR Judgment terminating Mother's parental rights.

Affirmed.

M.C., the mother, appeals a final judgment terminating her parental rights to three of her children. She contends she was wrongfully barred from testifying in her own behalf. Prior to the hearing, M.C. filed a motion to testify virtually rather than in person. She gave two reasons. First, she lived in Seattle, Washington, was indigent, and could not afford to travel to Miami, Florida, for the hearing. Second, she was pregnant and flying at her stage of pregnancy was unsafe for herself and the fetus. Attached to the motion was a doctor's letter stating that M.C.’s flying on a plane in her condition “would be dangerous for [her] health and the health of the fetus.” The Department agreed to the motion. Nothing in the record contradicts either of these assertions. In fact, the trial court itself recognized M.C. was indigent and assigned her an attorney. Nevertheless, the trial court denied the motion and did not grant a motion for continuance based on the same grounds.

At the final hearing, M.C. appeared virtually. While the trial court allowed M.C. to observe the proceedings virtually, it refused to allow her to testify virtually. On appeal, the Department has properly and admirably conceded error: “[T]he Department concedes that the trial court erred in denying the Father and Mother their right to appear remotely at the adjudicatory hearing” “after the Department and the Parents filed a joint motion” to allow them to do so. Still, the majority affirms the termination. I am compelled to dissent.

For starters, I cannot agree with the majority's dismissive characterization of what occurred here. The majority maintains this case involves nothing more than an “alleged procedural error—refusing to allow remote proceedings and testimony despite party agreement.” This “procedural defect,” the majority maintains, “does not affect a substantive right.”

No substantive right? Because the uncontested record indicates that poverty and pregnancy barred M.C. from testifying in person, the trial court's denial of the agreed motion to allow her to testify remotely prevented her from testifying at all. The denial thereby impacted two substantive rights of the highest order.

The denial violated M.C.’s due process rights to be “afforded a real opportunity to be heard and defend.” Schneider v. Tirikian, 397 So. 3d 1070, 1073 (Fla. 3d DCA 2024). “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Given the uncontested record that M.C. could not appear in person because of her poverty and her pregnancy, the refusal to allow her to testify remotely, when the opposing party agreed and M.C. was present, ready, willing, and able to testify remotely, violated this fundamental requirement of due process.

The denial also occurred in a proceeding where the full power of the government was being exercised to terminate M.C.’s “constitutionally protected rights ․ to be a parent to [her] children,” I.T. v. Dep't of Child. & Fams., 338 So. 3d 6, 10 (Fla. 3d DCA 2022), “an interest far more precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758–59 (1982) (quoting Lassiter v. Dep't of Soc. Sers. of Durham Cnty., N. C., 452 U.S. 18, 27 (1981)).

“When the State initiates a parental rights termination proceeding, it seeks not merely to infringe upon that fundamental liberty interest, but to end it.” In re Doe 23-B, 377 So. 3d 1211, 1220 (Fla. 1st DCA 2024) (B.L. Thomas, J., concurring). “If the State prevails, it will have worked a unique kind of deprivation.” Lassiter, 452 U.S. at 27. For this reason, “[t]he termination of one's rights to his or her children has been referred to as ‘the parental death penalty.’ ” L.A.G. v. Dep't of Child. & Fam. Servs., 963 So. 2d 725, 728 (Fla. 3d DCA 2007) (Shepherd, J., concurring).

The governing rules allow evidentiary hearings, like the final hearing in a termination of parental rights proceeding, to be conducted remotely if “the parties agree.” Fla. R. Juv. P. 8.255(e)(1) (“Evidentiary proceedings must be conducted in person unless the parties agree that a proceeding should be conducted remotely or conducted in a hybrid format, or the court orders it upon good cause shown.”). Here, the parties agreed.

Even if the trial court could have overruled the agreement of the parties in this regard, an issue we do not reach here, the requisite good cause would need to be of a magnitude sufficient to overcome M.C.’s right to testify on her own behalf in a proceeding brought by the government to terminate her parental rights. See, e.g., Mathews, 424 U.S. at 333. No such weighty consideration appears in this record.

The trial court explained it denied the agreed motion because, in the trial court's own words, “the mother allegedly fled the jurisdiction to avoid giving birth here ․” No one in this appeal maintains that M.C.’s action of moving to Washington was in any way improper or in violation of a court order. But the trial court appears to have focused not on M.C.’s conduct but on her assumed motive in moving. It is unclear in this record who made this “allegation” regarding M.C.’s motive. It appears to be the trial court itself. More importantly, the record contains no testimony or evidence establishing that M.C.’s move to Washington was, in fact, motivated by a desire to avoid giving birth in Florida.

Such suspicions do not overcome a mother's right to speak in her own defense when the State is attempting to take her children: “The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.” I.T., 338 So. 3d at 10 (quoting I.T. v. Dep't of Child. & Fams., 277 So. 3d 678, 683 (Fla. 3d DCA 2019) (citations omitted)).

Nor is the trial court's refusal to allow M.C. to testify on her own behalf rendered harmless by the trial court allowing M.C. to proffer her testimony of rehabilitation and then the trial court proclaiming the proffer legally insufficient. In ruling from the bench, the trial court said it was not crediting the proffer: “[E]ven if the parents had been present, and even if I had accepted the testimony of the parent that had been proffered, at best it would have been too little too late.” In its written order, the trial court shifted positions and maintained it was fully crediting the proffer but finding it legally insufficient. Either approach violates this Court's precedents.

The Third District has rejected the suggestion that allowing a party at an evidentiary hearing to proffer evidence for the court's consideration satisfies a party's due process right to testify on his or her own behalf. See Deutsche Bank Nat'l Tr. Co. v. Altos Del Mar (7701 Collins Ave) LLC, 187 So. 3d 930, 931 (Fla. 3d DCA 2016) (“We reject appellees’ contention that the opportunity to make a complete proffer prior to entering the involuntary dismissal satisfied due process concerns and compels affirmance.”). So have other courts. See Olguin v. Olguin, 339 So. 3d 1061, 1067 (Fla. 2d DCA 2022) (“[E]ven though the trial court asked the Former Husband's counsel what the Former Husband's testimony would be, the trial court erred in granting what was in effect an involuntary dismissal before the Former Husband had completed the presentation of his case-in-chief.”).

The Fourth District's case of T.W. v. Department of Children & Families, 975 So. 2d 630, 632 (Fla. 4th DCA 2008), does not support the majority's contention that the denial of a mother's right to testify in her own defense at a termination of parental rights hearing is made harmless by a judge first allowing the mother to proffer rather than testify and then rejecting the proffered testimony as insufficient. T.W. did not involve the testimony of the parent whose parental rights were at issue but of tangential witnesses. Even still, it conflicts with our more recent precedent of Altos Del Mar (7701 Collins Ave) LLC, 187 So. 3d at 931.

In closing, I acknowledge that M.C.’s actions may have been such as to test the patience of Job. “We ask much from our trial judges[,]” Masten v. State, 159 So. 3d 996, 997 (Fla. 3d DCA 2015), perhaps foremost to have the patience of Job. In a proceeding with such severe consequences, the trial court violated M.C.’s due process in denying the agreed motion and refusing to allow M.C. to testify remotely in her own defense when, as the Department agreed, the uncontradicted record reflected she was physically unable to be present based on her undisputed poverty and her pregnancy.

FOOTNOTES

1.   We need not decide whether the trial court erred under the statute because we review, not just for error, but for reversible error.

2.   See, e.g., Hickmon v. Rachel Bushey Reese, P.A., 275 So. 3d 841, 842 (Fla. 1st DCA 2019) ([A”] confession of error is not binding upon an appellate court[.]”).

3.   This is because the Parents had fled the jurisdiction, left no forwarding address, and no working telephone number.

4.   There is no indication from the record that this appearance was via zoom, rather the record indicates they were present.

5.   See § 39.801(3)(e), Fla. Stat. (2025) (“[T]he failure to appear constitutes consent for termination of parental rights by the person given notice.”).

6.   A failure to comply with a rule of procedure does not automatically rise to the level of a deprivation of a substantive right. Vena v. State, 295 So. 2d 720, 722 (Fla. 3d DCA 1974) (“[A] violation of a rule of procedure does not automatically result in a reversal.”); Swift Response, LLC v. Routt, 401 So. 3d 640, 644 n.3 (Fla. 1st DCA 2025) (“[T]he failure to follow a rule — by itself, without more context — cannot cause substantive harm because rules do not establish rights, so infringement of a rule is not necessarily an infringement of a right.”).

7.   Not every failure to follow a procedural rule invokes a constitutional crisis. We should avoid judicially creating a new legal principle where it is unnecessary. See Marc O. DeGirolami, The Traditions of American Constitutional Law, 95 Notre Dame L. Rev. 1123, 1181 (2020) (“’[A]void[ing] constitutional decision in order to safeguard the Court's own position and to activate the political processes of the legislature’--is also a form of prudential argument.”); see also Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445 (1988) (“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.”); Love v. Young, 320 So. 3d 259, 263 (Fla. 1st DCA 2021) (citation omitted) (“[T]he cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more—counsels us to go no further.”); Santa Lucia v. LeVine, 198 So. 3d 803, 806 (Fla. 2d DCA 2016) (“Under the principle of judicial restraint, ‘courts should avoid considering a constitutional question when a case may be disposed of on nonconstitutional grounds.’ ”).

8.   Mother's initial brief does not challenge these findings nor does it argue that had the Parents and their witnesses testified, the outcome of the case would be different. See Van Lent v. Everglades Found., Inc., 400 So. 3d 64, 74 n.9 (Fla. 3d DCA 2024) (“Issues not raised in the initial brief are considered waived or abandoned.”).

9.   In any case, “by finding the error is harmless, we are necessarily concluding that the error in this case cannot be characterized as fundamental.” Potter v. State, 304 So. 3d 1270, 1276 n.2 (Fla. 3d DCA 2020); see also Nelson v. State, 409 So. 3d 189, 192 (Fla. 3d DCA 2025) (“Harmless error can't be fundamental error”).

10.   The Dissent conflates the procedural right to testify remotely — governed by Rule 8.255(e)(1) — with the substantive right to testify at all. Here the mother was not precluded from testifying in person, she merely chose not to do so by fleeing the jurisdiction and relocating to Seattle during ongoing TPR proceedings. Further, we disagree with the Dissent's proposition that our holding conflicts with Deutsche Bank Nat. Tr. Co. v. Altos Del Mar (7701 Collins Ave) LLC, 187 So. 3d 930, 931 (Fla. 3d DCA 2016). That case involved involuntarily dismissal in violation of Florida Rule of Civil Procedure 1.420(b), which is procedurally distinguishable to this case. Cf. Id. (reversing “because the trial court erroneously, and in violation of Florida Rule of Civil Procedure 1.420(b), granted the [involuntary] dismissal before Deutsche Bank was permitted to present, and complete the presentation of, its case.”).

LINDSEY, J.

GOODEN, J., concurs.