A.M., Father of S.K.M. and E.B.M. v. D.S. and C.S.

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ Nos. 1D19-1853 1D19-1855 (Consolidated) _____________________________ A.M., Father of S.K.M. and E.B.M., Appellant, v. D.S. and C.S., Appellees. _____________________________ On appeal from the Circuit Court for Nassau County. Robert M. Foster, Judge. March 26, 2021 TANENBAUM, J. Due process of law is a bedrock constitutional guaranty. It entitles every person to a meaningful opportunity to be heard, upon proper notice, before the State deprives him of a substantive right. This guaranty rings hollow, though, unless that person has a fair idea of what exactly he is defending against, and an assurance that the proceeding in which he expects to participate goes forward predictably and orderly according to a fixed set of rules. A court’s switching from one type of proceeding (and a commensurate set of rules) to another (with a different set of rules)—mid-proceeding and without notice—runs directly counter to this fundamental understanding of due process. Yet, that unfortunately is what happened in these consolidated cases. A.M., the father of minor children S.K.M. and E.B.M., appeals two final orders. One terminated A.M.’s parental rights (“TPR”) as to both children pending their adoption by their maternal grandparents (D.S. and C.S.). The other appointed the maternal grandparents as the children’s permanent guardians, based on that TPR order. As will be discussed below, there are two types of TPR proceedings—with differing rules and standards. Because the grandparents pursued a TPR in conjunction with their effort to adopt S.K.M. and E.B.M., and the sum of the record reflects that this action was litigated as an adoption case rather than a dependency case, the proceeding should have progressed in a manner consistent with chapter 63 of the Florida Statutes, 1 which governs adoptions in Florida, and the rules associated with that chapter. The trial court, however, based its TPR order on the dependency provisions of chapter 39; those provisions dictate an entirely different type of proceeding. Because of this error, which resulted in the deprivation of A.M.’s right to parent his children without due process of law, we reverse. I. To put our discussion of the trial court proceedings in context, we first give an overview of the law and procedure that govern terminations of parental rights. As we just noted, there are only two types of proceedings by which parental rights may be terminated: “through [1] adoption or [2] the strict procedures set forth in chapter 39, Florida Statutes.” Fahey v. Fahey, 213 So. 3d 999, 1001 (Fla. 1st DCA 2016); see also Casbar v. DiCanio, 666 So. 2d 1028, 1029 (Fla. 4th DCA 1996) (“In Florida, there are only two means by which a parent’s rights may be terminated: one is through adoption pursuant to [chapter 63] and the other is through the strict procedures set forth in [chapter 39].”). The two types are separate and distinct. Cf. § 63.037, Fla. Stat. (providing that a case in which a minor has become available for adoption as the result 1 All references to the Florida Statutes throughout this opinion are to Florida Statutes (2017). 2 of a chapter 39 TPR proceeding “shall be governed by s. 39.812 and this chapter”; and exempting “[a]doption proceedings initiated under chapter 39” from certain provisions of chapter 63). Each has its own purpose and distinguishing features; and each is readily identifiable by the initiating pleading, the terminology used, and the manner in which the proceeding unfolds. Chapter 39 TPR Proceedings TPR proceedings under chapter 39 are primarily focused on the protection of children. Cf. § 39.001(1), Fla. Stat. (setting out legislative purposes for chapter 39); § 39.811(1), Fla. Stat. (requiring the trial court still to consider whether dependency has been established, even if “grounds for termination of parental rights have not been established by clear and convincing evidence”); see S.M. v. Fla. Dep’t of Child. & Fams., 202 So. 3d 769, 775–76 (Fla. 2016) (explaining the multi-step process before parental rights can be terminated under chapter 39—typically starting with a shelter petition, continuing with dependency proceedings, and ending with a permanency determination and, where necessary, termination of parental rights). In a chapter 39 TPR proceeding, then, adoption is a separate, post-disposition option, ancillary to the TPR itself. See § 39.813, Fla. Stat. (providing that the trial court that terminates parental rights in “proceedings pursuant to [chapter 39] shall retain exclusive jurisdiction in all matters pertaining to the child’s adoption pursuant to chapter 63”); § 39.812, Fla. Stat. (providing for a “postdisposition” process, which calls for a separate adoption petition, involvement and necessary consent by the Florida Department of Children and Families (“DCF”), and the trial court’s retention of jurisdiction until the adoption is finalized); cf. B.S. v. Dep’t of Child. & Fams., 246 So. 3d 479, 481–82 (Fla. 1st DCA 2018) (holding that while “substantive rights governing post-TPR adoptions remain in chapter 63, the procedures regarding post- TPR adoptions fall within the ambit of Chapter 39” and thus, the Florida Rules of Juvenile Procedure apply). With one exception, a TPR petition filed under chapter 39 effectively seeks an involuntary termination. See § 39.806(1)(b)– (n), Fla. Stat. (setting out various separate and independent grounds for termination of parental rights, based on the parent’s 3 conduct that objectively could be harmful to the child, regardless of the parent’s intent to be a parent); cf. id. at (1)(i) (establishing the prior involuntary termination of a parent’s rights regarding the child’s sibling as a ground for termination); Form 8.981, Fla. R. Juv. P. (“Petition for Involuntary Termination of Parental Rights”); 2 but see § 39.806(1)(a), Fla. Stat. (establishing voluntary “written surrender of the child,” with consent to “giving custody of the child to the department for subsequent adoption” as an additional ground for termination of parental rights). All procedures in TPR proceedings under chapter 39, “including petitions, pleadings, subpoenas, summonses, and hearings,” must be in accordance with the Florida Rules of Juvenile Procedure, “unless otherwise provided by law.” § 39.801(1), Fla. Stat. Both DCF and the guardian ad litem (“GAL”) program are parties in any chapter 39 proceedings. § 39.01(52), Fla. Stat.; cf. § 39.807(2)(a), Fla. Stat. (requiring trial court to “appoint a guardian ad litem to represent the best interest of the child in any termination of parental rights proceedings”); § 39.815, Fla. Stat. (providing that DCF, among others, may take an appeal in a chapter 39 TPR proceeding, requiring that an attorney for DCF be notified of any appeal, and that a DCF attorney “shall represent the state upon appeal”). In a chapter 39 TPR proceeding, unless there has been a voluntary surrender of parental rights, there must be an advisory hearing—in essence, an arraignment—“as soon as possible after all parties have been served with a copy of the petition and a notice of the date, time, and place of the advisory hearing for the petition.” § 39.808(1), (4), Fla. Stat.; see also Fla. R. Juv. P. 8.510(a). At the hearing, the trial court must inform the parties of their rights, appoint counsel as required by law, and appoint the 2 See also Fla. Dep’t of Child. & Fam. Servs. v. P.E., 14 So. 3d 228, 235 (Fla. 2009) (“It is undeniable that consent to termination based on the parent’s failure to appear is not among the grounds for termination listed in section 39.806(1).”); see also § 39.001(1), (3), Fla. Stat. (specifying as legislative purposes “prevention and intervention,” through DCF’s child protection system, to ensure children are free from neglect, abuse, and abandonment). 4 GAL, if one has not already been appointed. § 39.808(2), Fla. Stat. Both the petition and the notice of the advisory hearing must be personally served on the parent. Fla. R. Juv. P. 8.505(a). Both the statute and the rule require that the notice contain readily apparent text that is substantially similar to the following: FAILURE TO PERSONALLY APPEAR AT THIS ADVISORY HEARING CONSTITUTES CONSENT TO THE TERMINATION OF PARENTAL RIGHTS OF THIS CHILD (OR CHILDREN). IF YOU FAIL TO APPEAR ON THE DATE AND TIME SPECIFIED, YOU MAY LOSE ALL LEGAL RIGHTS AS A PARENT TO THE CHILD OR CHILDREN NAMED IN THE PETITION ATTACHED TO THIS NOTICE. § 39.801(3)(a), Fla. Stat.; Fla. R. Juv. P. 8.505(b); cf. J.B. v. Fla. Dep’t of Child. & Fam. Servs., 768 So. 2d 1060, 1064–65 (Fla. 2000) (cataloging the due process protections for TPR proceedings included in the predecessors to the chapter 39 TPR statutes). A petition filed in a chapter 39 TPR proceeding “shall be titled a petition for termination of parental rights,” Fla. R. Juv. P. 8.500(a)(2), and “styled: ‘In the interest of ___, a child,’ or: ‘In the interest of ___, children,’” Fla. R. Juv. P. 8.220; see also Form 8.901, Fla. R. Juv. P. The petition must identify the parent and his residence; must “contain a showing that the parent[] [was] offered a case plan,” when the law requires one; and must “contain an allegation that the parent[] will be informed of the availability of private placement of the child with an adoption entity.” Fla. R. Juv. P. 8.500(b)(4)–(5); see § 39.802(4), Fla. Stat. There is no written answer or other pleading required to be filed by the parent. § 39.805, Fla. Stat.; Fla. R. Juv. P. 8.520(a). The final hearing is called an “adjudicatory hearing.” § 39.809, Fla. Stat.; Fla. R. Juv. P. 8.525. All parties are entitled to be present at all termination hearings. Fla. R. Juv. P. 8.525(d). Chapter 63 TPR Proceedings Chapter 63 is the Florida Adoption Act. § 63.012, Fla. Stat. The chapter focuses, of course, on the best interest of the children; but the primary purpose of the chapter is to put in place safeguards 5 for a smooth adoption. Those safeguards include ensuring that the “minor is legally free for adoption and that all adoptions are handled in accordance with the requirements of law”; and that the “required persons consent to the adoption or the parent-child relationship is terminated by judgment of the court.” § 63.022(4)(a)–(b), Fla. Stat. Unlike a chapter 39 TPR proceeding—where termination is its own end upon clear and convincing proof of certain statutory factors—a TPR proceeding under chapter 63 is in furtherance of and service to the adoption itself. Cf. § 63.089, Fla. Stat. (setting out procedures for the termination of parental rights “pending adoption,” and indicating that a “judgment terminating parental rights pending adoption legally frees the child for subsequent adoption”); § 63.087(3), Fla. Stat. (providing that a “petition for adoption may not be filed until after the date the court enters the judgment terminating parental rights pending adoption,” but allowing relatives to file a “joint petition for termination of parental rights and adoption” instead); § 63.102(1), Fla. Stat. (providing that anyone beside stepparent or relative must wait until TPR judgment to file petition for adoption); cf. id. § 63.102(6) (providing that in a case of adopting a relative, there does not need to be separate TPR proceeding and that the “final judgment of adoption shall have the effect of terminating parental rights simultaneously with the granting of the decree of adoption”). Unsurprisingly, then, the central inquiry in most chapter 63 TPR proceedings is whether there has been consent to the adoption by all those whose consent is required. See § 63.089(1), (2)(a), Fla. Stat. (requiring hearing before TPR “pending adoption,” but requiring “consent to adoption” after proper notice before the hearing may be held); id. § 63.089(3) (providing various considerations centering on “consent,” including failure to respond to TPR proceeding after notice, “unreasonably withholding his or her consent,” and incapacity, as “grounds for terminating parental rights pending adoption”); id. § 63.088 (providing for procedure by which trial court must inquire as to whose consent must be obtained and what must be done to provide notice and obtain consent or waiver). 6  Chapter 63 provides that abandonment, as that term is defined in section 63.032(1), Florida Statutes, may substitute for actual consent. See § 63.089(3)(e), (4), Fla. Stat. (allowing trial court to enter a TPR “pending adoption” against a “person whose consent to adoption is required” where, after notice, and the court “determines by clear and convincing evidence, supported by written findings of fact,” that the person has abandoned the child “under subsection (4)”). Even with respect to abandonment under chapter 63, though, the focus is on the parent’s intention to be a parent. See § 63.032(1), Fla. Stat. (defining abandonment as a “situation [] sufficient to evince an intent to reject parental responsibilities,” and allowing a trial court to determine abandonment based on whether, in its opinion, the parent’s efforts are “marginal” and “do not evince a settled purpose to assume all parental duties”); § 63.089(4), Fla. Stat. (allowing a finding of abandonment also to be based on “whether the person alleged to have abandoned the child, while being able, failed to establish contact with the child or accept responsibility for the child’s welfare” or on whether the parent is subject to ongoing incarceration at the time of the hearing and meets certain other criteria). In other words, “abandonment” under chapter 63 requires a court’s assessment of whether the parent’s conduct has sufficiently demonstrated an intent to avoid being a parent to the child such that the required consent to adoption fairly can be excused. In a chapter 63 TPR proceeding, the Florida Family Law Rules apply. See Fla. Fam. L. R. P. 12.010(a) (providing that the “rules apply to all actions concerning family matters . . . except as otherwise provided by the Florida Rules of Juvenile Procedure,” including “adoption”); see also B.S., 246 So. 3d at 481. The petition must bear the title, “In the Matter of the Termination of Parental Rights for the Proposed Adoption of a Minor Child.” § 63.087(4)(c), Fla. Stat.; cf. Fla. Fam. L. R. P. 12.100(c)(1) (requiring that “documents filed in the action must be styled in such a manner as to indicate clearly the subject matter of the document and the party requesting or obtaining relief” and that the specific caption for a chapter 63 TPR proceeding state, “In re: Termination of Parental Rights for Proposed Adoption of . . . . . (name on child’s birth certificate) . . . . ., Minor Child(ren)”); Fla. Fam. L. R. P. 12.100(c)(2) (requiring that the “nomenclature used in the caption 7 should be simple, clear, constant, and, to the extent possible, unchanging”). Unlike in a chapter 39 TPR proceeding, the parent must file a written answer to the petition “in accordance with the Florida Family Law Rules of Procedure.” § 63.087(6), Fla. Stat.; see Fla. Fam. L. R. P. 12.100(a) (requiring that there be an answer to a complaint or petition); Fla. Fam. L. R. P. 12.110(c) (requiring that the pleader answer each claim asserted and “admit or deny the allegations on which the adverse party relies”). When an action under chapter 63 is “at issue,” typically after the close of the pleadings, the action shall be set for trial. See Fla. Fam. L. R. P. 12.440 (“Setting Action for Trial”). II. To be sure, there was not precise compliance with either of these chapters in the proceedings before the trial court. The record makes clear, however, that the underlying TPR action was both initiated and litigated primarily as a chapter 63 proceeding. By way of background, the children’s mother tragically died in a traffic crash. She and A.M. were never married, and a paternity action between them had resulted in the mother being awarded full parental responsibility. A.M. was not awarded timesharing. The mother subsequently received a domestic violence injunction against A.M., so he was involved in the children’s lives very infrequently until the mother’s death. The mother’s parents, D.S. and C.S., had frequently cared for and housed the children on the mother’s behalf, so upon her death, they petitioned for and were appointed as the children’s emergency temporary guardians pursuant to section 744.3031, Florida Statutes. D.S. and C.S. soon thereafter filed a petition for permanent guardianship 3 in that same emergency guardianship action. At the same time, the grandparents initiated a separate action with the filing of a pleading titled, “Joint Petition for Termination of 3 The petition stated it was filed pursuant to chapter 744, Florida Statutes, but that chapter does not provide for a grant of a permanent guardianship. 8 Parental Rights and Adoption by Maternal Grandparents.” The caption read, “In re: Termination of Parental Rights Pending Adoption of: [S.M. and E.M.].” By its own terms, this petition sought termination of A.M.’s parental rights as to S.M. and E.M., pursuant to both chapter 39 and chapter 63, pending adoption by their maternal grandparents. This approach to the pleading was odd, because as explained in the preceding section, chapter 39 does not provide for a TPR proceeding pending adoption; only chapter 63 does, and it does so expressly. See §§ 63.087–.089, Fla. Stat. According to the petition, the grandparents sought to adopt the children in order to formalize the parent-child relationship that already existed between them. The petition did not specify a statutory ground for termination listed in section 39.806, Florida Statutes. It did allege, though, that A.M. “neglected and abandoned the minor children, within the meaning of Section 39.01(1), Florida Statutes 2017.” Further, the petition asserted that A.M. had not supported the children since their birth. It also averred that A.M. was “unfit” to be a father; that he did “not have the capacity to care for the children”; and that he had a history of substance abuse and criminal behavior, which “pose[d] a threat to the children’s safety, well-being, physical, mental and emotional health.” According to the petition, there were grounds for the termination of A.M.’s parental rights pursuant to sections 39.01(1) and 39.806, Florida Statutes. It asked for the termination of A.M.’s “parental rights in accordance with Chapter 39, Florida Statutes” and “a Final Judgment of Adoption of the Minor Children by the Petitioners.” In the petition, there was the following allegation, which is redolent of a chapter 63, pre-adoption TPR proceeding: “A copy of this Petition was served on all known persons whose consent is required but did not waive notice, as well as on all persons whose consent is required but did not provide consent.” 4 The summons that accompanied the petition matched the summons template 4 Curiously, the petition also contained a warning that “failure to personally appear at the advisory hearing constitutes consent” to a TPR. At best, inconsistent statements like this, together with citations to chapter 39, created procedural confusion. 9 used in matters governed by the Florida Family Law Rules, which also suggests the grandparents initiated the action under chapter 63. For instance, it directed A.M. “to file a written response to the attached complaint/petition with the clerk of this circuit court,” a requirement that exists only in a chapter 63 proceeding. It stated that A.M. “may want to call an attorney right away. If you do not know an attorney, you may call an attorney referral service or a legal aid office (listed in the phone book).” The summons did not mention that A.M. would have a right to appointed counsel, as he would in a chapter 39 proceeding. It also contained a warning about rule 12.285 of the Florida Family Law Rules of Procedure— a rule that does not apply in TPR proceedings under chapter 39. A.M. filed an answer, just as someone would do in a chapter 63 proceeding. At the same time, the case followed a course that did not have the typical progress markers of a chapter 39 proceeding. There was no appointment of a GAL for the children in the case. 5 See § 39.807(2)(a), Fla. Stat. There also does not appear to have been any notice to and no participation by DCF in the case. There does not appear to have been an advisory hearing; instead, there was a hearing on the grandparents’ motion to set trial. The trial court considered that motion on the same day that it considered a motion to withdraw filed by A.M.’s lawyer. The trial court granted that motion to withdraw, but it did not have the colloquy with A.M., statutorily required in a chapter 39 proceeding, about his right to counsel or the right to have counsel appointed for him if he could not afford replacement counsel. See § 39.807(1), Fla. Stat. The trial court simply directed that all future filings be sent directly to A.M. A couple days after that, the trial court set the case “for trial, without jury, in chambers” about two months hence. There is another item of note in the record. The trial court granted the grandparents’ motion, over A.M.’s objection, to allow the children to testify in camera. Its order cited Florida Family 5 There does appear in the record an order referencing a GAL appointed by the trial court in an earlier TPR proceeding initiated by the then-living mother and her boyfriend. There is no indication of any participation in this TPR by any GAL. 10 Law Rule 12.407, which precludes a minor child from being brought to court to appear as a witness in family law proceedings (including adoption) without a prior court order based on good cause. The trial court did this rather than cite Florida Rule of Juvenile Procedure 8.255(d), which sets out a process for examination of minors in camera in chapter 39 TPR proceedings. Four days before that trial was to commence, A.M.’s new counsel (retained just a couple days earlier) moved for a continuance. The motion pointed out that A.M. was indigent, was not advised of his right to court-appointed counsel, and had gone unrepresented for over two months leading up to the trial. According to the motion, new counsel would not have had sufficient time to prepare. Moreover, A.M. was in jail and would not be released until two weeks after the date set for trial, so A.M. could not attend. On the first day of the trial, A.M.’s counsel reiterated his objections. Counsel asserted that A.M. did not receive the notice required by section 63.088, Florida Statutes, noted that “[e]ven a private adoption is considered to be State interference” and implicates “a parent’s fundamental liberty interest,” and referenced section 63.088, Florida Statutes, as “designed to protect the parent’s fundamental rights by giving them warning and giving them notice of the time and date and location of the proposed hearing.” He further stated as follows: “Finally, I think that given that we’re dealing with such a fundamental right here that my client should also be afforded to be present and to provide testimony to the court.” Counsel noted that he had just been retained, so he did not have much time to make “arrangements for him to be here.” He did try “to set up a telephone appearance.” At no point did counsel for the grandparents stand up and contend that the proceeding instead was going forward under chapter 39. The trial court decided to proceed, finding as follows: [T]he father has had an attorney of record since [earlier in the year], an answer was filed on behalf of the father . . . . The father had plenty of time [following his lawyer’s withdrawal] to either request from the court indigent counsel or secured new counsel, which he actually has 11  done. The father’s failure to appear today is due to his own actions. He’s been incarcerated since . . . after this hearing was set. That’s plenty of time for him to have arranged to appear by telephone if he so wished, and accordingly, I deny the father’s motion. That first day of trial went on in A.M.’s absence. Of course, there also was no GAL or DCF attorney present. The trial carried over to a second day. Notably, the grandparents’ counsel served a notice regarding that subsequent date. It asked A.M. and his counsel to “take notice that a petition to terminate parental rights pending adoption has been filed” and that “[t]here will be a hearing on the petition to terminate parental rights pending adoption.” And, notably, it contained this notice: “UNDER FLORIDA STATUTES SECTION 63.089, FAILURE TO TIMEY [SIC] FILE A WRITTEN RESPONSE TO THIS NOTICE AND THE PETITION WITH THE COURT OR TO APPEAR AT THIS HEARING CONSTITUTES GROUNDS UPON WHICH THE COURT SHALL END ANY PARENTAL RIGHTS YOU MAY OR [SIC] ASSERT REGARDING THE MINOR CHILD.” (emphasis supplied; capitalization in original). A transport order appears to have been entered, and A.M. attended. Again, neither a GAL nor a representative of DCF was present. One final day of testimony was taken a couple weeks later; A.M. was there with his counsel, but there still was no GAL or DCF representative. A.M., his mother, and his wife (among others) testified at the trial. Their testimony focused on the contacts that A.M. had had with the children and on his on-again-off-again child support payments, ostensibly presented by A.M. with the intent to address directly the question of abandonment under chapter 63. A clinical psychologist also testified. She discussed her recommendation that there should not be reunification of the children with A.M. and that custody and placement should permanently be placed with the grandparents. A.M. had objected to this testimony (which would be relevant only in a chapter 39 TPR proceeding) because she had nothing to say that was relevant to the question of whether A.M. abandoned the children under chapter 63, the ultimate issue in the proceeding. At the close of the third day of testimony, the trial court asked counsel to submit proposed TPR orders. “To save time, because there may be some likelihood that the petition for parental 12 rights is not granted, we would go into the guardianship case and I would like to have proposed permanent guardian orders entered, which would outline the process by which [A.M.] would have contact with his children.” (emphasis supplied). 6 The trial court later rendered an “Order Terminating Parental Rights of Minor Children Pending Adoption by Maternal Grandparents.” The order states that the trial court “considered and evaluated all relevant factors, including the statutory factors set forth in Section 39.810, Florida Statutes.” According to the order, the trial court found, “based on clear and convincing evidence, that grounds for the termination of the parental rights of [A.M.] are established, pursuant to Section 39.806.” (emphasis supplied). 7 The trial court then set out specific findings that tracked nine of the eleven factors required to be considered as part of the “manifest best interests of the child” statutory element set out for chapter 39 TPR proceedings. See § 39.810(1)–(5), (7), (9)–(11), Fla. Stat. However, the trial court failed to make any specific findings to support its determination. The trial court concluded that “[A.M.] has abandoned the minor children, as defined in Section 39.01(1).” Cf. § 39.806(1)(b), Fla. Stat. (establishing abandonment, as that term is defined in section 39.01(1), as a ground for the termination of parental rights). The trial court also determined “that 6 The highlighted language is a separate cause for concern over how the trial court conducted the TPR proceeding. Compare it with the clear-and-convincing-evidence standard that is applicable in both types of TPR proceedings: “The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.” Inquiry Concerning a Judge, 645 So. 2d 398, 404 (Fla. 1994) (emphases supplied) (quoting another source). In addition, as we discuss later, the trial court could not grant a permanent guardianship except as post- disposition relief in connection with a chapter 39 TPR. 7 As it did in its pretrial orders, the trial court included in the TPR order several references to provisions in chapter 63. 13 reunification of the children with [A.M.] poses a substantial risk of significant harm to the children,” based on his criminal history, likelihood of continued incarceration, and substance abuse, “which renders him incapable of caring for the child [sic].” Cf. § 39.806(1)(d), Fla. Stat. (establishing parent’s incarceration, based on one or more enumerated, objective criteria, as a ground for termination); § 39.806(1)(j), Fla. Stat. (establishing history of substance abuse, under some circumstances, as a ground for termination if it “renders [the parent] incapable of caring for the child”). On the same day, the trial court rendered an order granting the grandparents’ permanent guardianship petition. In his motion for rehearing on both orders, A.M. preserved the main issue now on appeal by highlighting up front, in unmistakable language, that the trial court had conflated the two types of TPR proceedings. A.M. explained that chapter 39 proceedings “are dependency proceedings,” governed by Florida’s juvenile procedural rules. Chapter 63 proceedings are governed by the family law rules. A.M. explained that he was proceeding under the family law rules because the case was “assigned a Domestic Relations case number” and “did not proceed in the Juvenile Court”; and because the type of petition that the grandparents filed (a joint petition for TPR and adoption) “is only authorized under Florida Statute 63.087(3) for relative adoptions.” A.M. in turn argued that the trial court incorrectly utilized the definition of “abandonment” under section 39.01(1), Florida Statutes, rather than the definition found at section 63.032(1). According to A.M., the main difference between the two definitions is that under chapter 63’s definition, a finding of abandonment must be based on a determination that the parent exhibited conduct that showed an intent to forego all rights to the child. A.M. made a similar argument in his motion for rehearing directed to the guardianship order. That is, chapter 744 does not authorize permanent guardianships; a permanent guardianship could be granted only pursuant to a chapter 39 proceeding. The trial court denied both motions for rehearing without elaboration. We have both the TPR order and the permanent guardianship order before us for review. 14  III. A. A.M. makes several arguments on appeal, but his argument that the trial court applied the wrong definition of “abandonment” provides a sufficient basis for reversal. The trial court’s termination of A.M.’s parental rights based on an entirely different statutory definition and inquiry—unannounced prior to issuance of the TPR order—amounted to a failure to afford A.M. due process of law in connection with its permanently taking a substantive right from him. As we already have explained, there are substantive differences between the definitions of abandonment in chapters 39 and 63. In a chapter 39 TPR proceeding, there can be abandonment, even if the parent has made financial contributions to the child’s care or has established contacts with the child. See § 39.01(1), Fla. Stat. The definition of abandonment in chapter 39 requires the trial court to determine whether the parent “has made no significant contribution to the child’s care and maintenance” or whether the parent “has failed to establish or maintain a substantial and positive relationship with the child, or both.” Id. (emphasis supplied). The inquiry is objective, presumably to be considered from the perspective of the child’s welfare. This characterization finds support in the criteria to be considered for whether there has been a “substantial and positive relationship”; the trial court is to ask whether there was “frequent and regular contact” through “frequent and regular visitation or frequent and regular communication.” Id. “Marginal,” “incidental,” or “token” efforts do not count. Id. Moreover, not just present incarceration but past incarceration can be a basis for abandonment under chapter 39. See id. (“The incarceration, repeated incarceration, or extended incarceration of a parent . . . may support a finding of abandonment.”). In a chapter 63 TPR proceeding, by contrast, the definition of abandonment is subjective, which is consistent with the purpose of such a proceeding: to determine whether there is consent to the adoption, or whether lack of consent should be excused. Compare § 63.089(2), (3), Fla. Stat. (requiring consent to adoption, waiver after notice, or abandonment of child by biological father before 15 proceeding with hearing and TPR), and id. § 63.062(1), (2) (requiring written consent to adoption as condition precedent to granting TPR pending adoption, unless one or more grounds set out in section 63.089(3) is demonstrated), with id. § 63.032(1) (defining abandonment in terms of parent’s “intent to reject personal responsibilities” or lack of “settled purpose to assume all parental duties”), and id. § 63.089(4) (providing that abandonment may be based on parent’s failure, despite “being able, [] to establish contact with the child or accept responsibility for the child’s welfare”); cf. J.S. v. S.A., 912 So. 2d 650, 659 (Fla. 4th DCA 2005) (“The court may excuse the father’s consent to adoption if it finds by clear and convincing evidence that the father has abandoned the minor child.”); S.M.K. v. S.L.E., 238 So. 3d 925, 928 (Fla. 5th DCA 2018) (explaining that “consent of certain persons is required before an adoption petition may be granted” but that abandonment “waives the consent requirement”). Under this definition, the trial court must look to whether the parent “while being able, makes little or no provision for the child’s support or makes little or no effort to communicate with the child,” such that the situation “evince[s] an intent to reject parental responsibilities.” § 63.032(1), Fla. Stat. (emphasis supplied); Hinkle v. Lindsey, 424 So. 2d 983, 985 (Fla. 5th DCA 1983) (noting that abandonment in the adoption context is “defined as conduct which manifests a settled purpose to permanently forego all parental rights and the shirking of the responsibilities cast by law and nature so as to relinquish all parental claims to the child” (internal quotation and citations omitted); id. (emphasizing, however, that “shirking of parental duties and obligations” does not, alone, prove abandonment in an adoption proceeding). The trial court may declare a child abandoned if it forms an “opinion” that the parent’s efforts “are only marginal efforts that do not evince a settled purpose to assume all parental duties.” § 63.032(1), Fla. Stat. (emphasis supplied). In this type of inquiry, the question is not whether, objectively, the parent is supporting the child enough, regardless of his or her financial resources. Cf. Hinkle, 424 So. 2d at 985 (explaining that in the adoption context, a father’s being behind on child-support payments, alone, is not clear and convincing evidence of his intent to abandon the child, especially where the father had sent some support and made some 16 efforts to contact and see the child); S.M.K., 238 So. 3d at 929 (concluding that where record evidence showed that the father had attempted to assert his parental rights, mere prior failures by the parent to provide child support was not enough to support determination that the father had a settled purpose to forego his rights to the child). Rather, the key to the abandonment inquiry under chapter 63 is whether the parent has made any effort at all to support or make contact with the child, where the parent otherwise is able to do so. Whether a parent has abandoned the child, such that the parent’s consent is not required before proceeding with adoption, is the threshold inquiry in a chapter 63 TPR proceeding. If there is not clear and convincing evidence of abandonment, the lack of consent to adoption by the father cannot be excused, and the petition seeking both the TPR and adoption should be dismissed. See § 63.089(5), Fla. Stat. (requiring dismissal of petition if there is not clear and convincing evidence that a parent’s rights to the child should be terminated and requiring that the order include written findings as to abandonment criteria “if rejecting a claim of abandonment”); Hinkle, 424 So. 2d at 985 (holding that in an adoption proceeding, the “threshold question of abandonment must first be determined,” and that the “trial court cannot decide the case on the child’s best interest unless the evidence first supports a finding of abandonment by the non-consenting natural parent”); Webb, 473 So. 2d at 1379 (same); V.M. v. Home at Last Adoption Agency, 93 So. 3d 1112, 1114 (Fla. 5th DCA 2012) (holding that after finding that the evidence did not support abandonment in an adoption proceeding, the trial court “had no choice but to dismiss the petition”). All of this is to say that the respective definitions of abandonment in chapter 39 and chapter 63 are not interchangeable. The type of TPR proceeding determines which definition must be applied to the facts of the case, and the inquiry in a chapter 63 TPR proceeding must be whether there was a demonstration of abandonment as that term is used in chapter 63. Determining whether there is abandonment under the definition in chapter 39 in a proceeding that appears to the parent to be under chapter 63, without notice, effectively deprives the parent of a meaningful opportunity to defend his rights in an orderly 17 process. This falls far short of comporting with due process requirements. B. The lack of due process is the deficiency we must remedy here. The trial court granted the TPR in reliance on the definition of abandonment found in chapter 39. In fact, despite its several mentions of chapter 63 provisions, the analysis in the TPR order relies almost entirely on the chapter 39 TPR paradigm. Consent or abandonment under chapter 63 does not appear to have been seriously considered, if at all. The trial court did this without any advance notice to A.M. that the proceeding converted from an adoption proceeding to, essentially, a dependency proceeding. Of course, A.M. had every reason to believe that he was defending against a charge of abandonment in a chapter 63 proceeding and in opposition to the grandparents’ proposed adopt