IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
C.C., FATHER OF L.A., A CHILD,
Appellant,
v. Case No. 5D22-1476 LT Case No. 2017-DP-000117-SH
DEPARTMENT OF CHILDREN AND FAMILIES,
Appellee.
/
Opinion filed November 14, 2022
Appeal from the Circuit Court for Osceola County, Laura Shaffer, Judge.
Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
Kelley Schaeffer, of Children’s Legal Services, Bradenton, for Appellee, Department of Children and Families.
Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Desiree Erin Fernandez, Senior Attorney, of Statewide Guardian ad Litem Office, Tallahassee, and Blake Lynne Bruce, of Defending Best Interests Project, Alexandria, VA, for Appellee, Guardian ad Litem Program.
COHEN, J.
C.C. (“Father”) appeals the order terminating his parental rights to L.A. (“the
child”). 1 Father argues that there was not competent substantial evidence that
termination was the least restrictive means of protecting the child. We agree.
This case involves competing principles found in many termination of parental
rights cases: the constitutional right of a parent to raise his or her child and the right
of the child to permanence and stability. Courts have long recognized the
fundamental liberty interest of parents in determining the care and upbringing of their
children. Padgett v. Dep’t of HRS, 577 So. 2d 565, 570 (Fla. 1991). This interest is
particularly strong under the Florida Constitution. S.M. v. Fla. Dep’t of Child. &
Fams., 202 So. 3d 769, 777–78 (Fla. 2016) (“[T]his fundamental right is equally as
strong, if not stronger, under the Florida Constitution.”). However, that interest is not
absolute; the best interests of the child prevail. Padgett, 577 So. 2d at 570 (“[T]he
only limitation on this rule of parental privilege is that as between the parent and the
child the ultimate welfare of the child itself must be controlling.” (citation omitted)).
Born in Osceola County in December of 2017, the child was sheltered after
1 The termination of the mother’s parental rights was affirmed by this Court in a separate case. 2 his mother was arrested for physical abuse of her eldest child. Father resided in
North Carolina at the time of the child’s birth. The mother consented to the child’s
dependency, while Father did not. Instead, Father requested that the child be placed
with him. The Department of Children and Family Services (“the Department”)
moved for an expedited placement with Father, dismissed the dependency petition
as to him without prejudice, and ordered a home study. Upon Father’s request, the
Department assigned several voluntary tasks to him, including completion of
individual counseling, parent coaching, and a psychological evaluation—which
Father completed.
The home study, performed in North Carolina, was negative because of
Father’s criminal history. The Department was informed that there was nothing Father
could do to obtain a positive home study in North Carolina. Additional services were
not ordered for Father, although reunification remained the goal; instead, the
Department recommended that he secure an apartment in Florida to potentially
obtain a positive home study, and Father made some attempt towards that goal.
At six months old, the child was placed with a non-relative, with whom the child
still resides; the child is now almost five. Between incarcerations, Father visited the
child through video calls two to three times per week, supervised by the caregiver,
and travelled to Florida on multiple occasions to visit the child.
Father was unable to effectuate a move to Florida when he became
incarcerated. Father’s criminal history includes an arson and assault conviction that 3 predated the birth of the child by twelve years. However, Father has been in and out
of jail during the pendency of this case. Father is currently incarcerated with an
anticipated release date of September 2023.
Father was arrested in North Carolina for DWI in August 2018, and not long
after, the Department filed an amended petition for supplemental findings of
dependency relating to Father, alleging impending danger to the child, prospective
neglect, and prospective abuse, which Father denied. The Department noted the
recent arrest and Father’s criminal history preceding the child’s birth, as well as
reports of domestic violence involving Father. At that point in time, the child had not
been adjudicated dependent as to Father. The Department also moved to place the
child in a permanent guardianship with the caregiver, noting that adoption was not
appropriate given Father’s engagement in services as well as his provision of
money, clothing, diapers, and food for the child. The court responded by ordering a
goal of permanent guardianship concurrent with a goal of reunification, and also
ordered that the Department file an amended case plan within 30 days to include
proposed tasks for Father. That plan was never generated.
During this time, Father had been sentenced to 18 months on the DWI
charge.2 After serving seven months, he was released into a voluntary substance
abuse treatment program. One week later, the Department filed an expedited petition
2 The offense predated the child’s birth; the sentence did not. 4 for involuntary termination of Father’s parental rights. The petition alleged: (1)
chronic substance abuse; (2) abandonment; and (3) continued involvement
threatens the child irrespective of services. In January 2020, after completing the
treatment program, Father resumed his virtual visits twice per week.
The TPR trial was conducted piecemeal over a span of ten months. The trial
court initially denied the Department’s petition. However, after a motion for
rehearing filed by the Guardian Ad Litem (“GAL”), the trial court reversed itself and
ordered a new trial sua sponte, noting that, because the trial transpired over nearly
a year during the pandemic, the case should be tried again “in fairness to the
parties.”
The court ordered Father to undergo an updated psychological evaluation.
Father requested that the evaluation be scheduled in North Carolina or,
alternatively, that the Department assist with his travel to Florida for an appointment
there. The Department did not respond, so Father offered to participate in the
evaluation in Florida during a trip in May 2021 to visit the child.
Shortly before the trip, Father was again incarcerated and has not seen the
child since. Several months later, the Department filed an amended expedited TPR
petition, retaining the original grounds but adding a fourth ground, that the child was
in out-of-home care for 12 out of the past 22 months.
At trial, the GAL testified that, prior to his incarceration, Father travelled to
Florida for in-person visits three to four times per year and had video visits with the 5 child as well. He had provided clothing for the child around the holidays; would
check throughout the year on the child’s needs; provided diapers when asked;
signed parental consents for medical procedures; and paid a portion of the funds
for the child’s daycare. The GAL expressed concerns about the child’s safety with
Father given his “very long prior history of criminal involvement” and “ongoing issues
with substance abuse” but conceded that Father had never been provided a case
plan.
Father testified remotely from prison in North Carolina. He acknowledged his
criminal history including his current incarceration for possession of a firearm by
a felon, communicating threats and assault by pointing a weapon, and violation of
probation by resisting a public officer. His plan following his release was to transfer
his parole to Florida and resume the relationship with his child.
Father testified that in addition to completing the counseling services and
psychological evaluation after referrals were provided in 2018, he also took an
anger management class and followed other recommendations made by the
psychologist. He stated that he worked to better himself while incarcerated by
completing his GED, obtaining an HVAC diploma, and attending the substance
abuse program as well as associated 12-step meetings. He had not heard from his
case manager for almost one year, since his incarceration in May 2021.
The case manager admitted that she had not made any referrals to overcome
concern about Father’s substance abuse after he completed the voluntary treatment 6 program, such as drug testing. She also explained that the updated psychological
evaluation was ordered while the case was in a TPR posture so that the Department
could determine whether it wanted to move forward with the TPR trial or not; but there
was no follow-up to obtain the evaluation once Father missed the appointment in
Florida.
The trial court entered final judgment terminating Father’s parental rights on
the basis of (1) abandonment, (2) continuing involvement threatens the child
irrespective of services, and (3) the child having been in care for 12 of the last 22
months, pursuant to section 39.806(1)(b), (1)(c), and (1)(e)3., Florida Statutes
(2021), respectively. The majority of the court’s findings addressed his criminal
history. After noting that Father did not have a case plan, the trial court added that
“he did participate in some services but it did not stop the criminal behavior and it
did not stop him from being repeatedly incarcerated.”
As to the least restrictive means of protecting the child, the trial court found
that “[t]he child was sheltered four and a half years ago” and proceeded to find, in a
conclusory fashion, “The Department has made reasonable efforts. Neither parent
is able to be safely reunified with the child.”
Father argues on appeal that the Department failed to prove that the termination
of his parental rights was the least restrictive alternative when he was never provided a
case plan and had never harmed the child. 3
3 We note the assertion in the Department’s brief that Father had been given 7 The least restrictive means test is a judicially imposed requirement that “is tied
directly to the due process rights that must be afforded to a parent before his or her
parental rights are terminated.” S.M., 202 So. 3d at 778. However, the test “is not
intended to preserve a parental bond at the cost of a child’s future. Rather . . . it simply
requires that measures short of termination should be utilized if such measures can
permit the safe re-establishment of the parent-child bond.” Id. at 778–79 (citation
omitted). The least restrictive means analysis focuses on the actions taken by the
Department to ensure that a parent is provided fair procedures before the
termination of parental rights. I d . at 778 (“This prong focuses specifically on what
actions were taken by the State before filing a petition to terminate the parent’s
rights.”). In order to meet the requirement, the Department must show that it has
made a good faith effort to rehabilitate the parent and to reunify the family. K.D. v.
Dep’t of Child. & Fams., 242 So. 3d 522, 523–24 (Fla. 1st DCA 2018). Generally,
this prong is satisfied by the Department offering the parent a case plan and
providing the parent with the help and services necessary to complete the case
plan. Id. However, a case plan is not necessarily a mandatory prerequisite to
termination. Id. at 524. Even so, a petitioner’s burden to prove that termination is
the least restrictive means of protecting a child from harm is not eliminated.
Beginning with an analysis of the Department’s efforts to rehabilitate Father
a case plan. Both the testimony of the GAL and the findings made by the trial court demonstrate the inaccuracy of that assertion. 8 and reunify him with the child, for the four years from the shelter petition to the filing
of the amended TPR petition, little was done, despite the Department’s undisputed
awareness from the outset that Father had a criminal history and substance abuse
issues. The Department provided—at Father’s request—some initial voluntary
counseling, one psychological evaluation, and two home studies. The Department
did not provide: (1) a formal case plan and associated services that would provide
Father with an opportunity to prove his capability; (2) an updated psychological
evaluation; (3) substance abuse treatment or drug screening, despite diagnosed and
admitted alcoholism, and the Department’s allegation of chronic substance abuse; or
(4) any contact or services while incarcerated or between the two incarcerations. In
other words, the Department expended minimal efforts during the over-two years
that Father was not incarcerated and none while he was incarcerated. This lack of
effort does not suffice as having provided Father with “fundamentally fair
procedures” before terminating his parental rights. See S.M., 202 So. 3d at 778.
In addition, the evidence presented did not demonstrate Father would not
benefit from services, for several reasons. See C.A.T. v. Dep’t of Child. & Fams.,
10 So. 3d 682, 684–85 (Fla. 5th DCA 2009) (“[I]n order to establish that termination
is the least restrictive means, DCF must show that the parent will not benefit from
court ordered services.”); L.C.A. v. Dep’t of Child. & Fams., 319 So. 3d 671, 678
(Fla. 3d DCA 2021); A.S. v. Dep’t of Child. & Fams., 162 So. 3d 335, 340 (Fla. 4th
DCA 2015). First, the GAL testified that there are services for incarcerated parents 9 that are intended to reduce recidivism, which the GAL simultaneously noted was
the State’s primary concern for Father. Second, no updated psychological
evaluation was conducted, despite Father’s willingness to submit to one. See In re
E.R., 49 So. 3d 846, 859–60 (Fla. 2d DCA 2010) (holding that termination was
least restrictive means when court could not determine whether mother had mental
health problem that would prevent her from benefitting from court-ordered services,
because mother refused to discuss her other child’s mysterious death, rendering
psychological evaluation incomplete). And more significant, the GAL testified that
the results of the updated evaluation would inform the Department’s determination
whether to file the TPR at all; yet, the evaluation was never conducted. Third, there
was also no evidence that supervised visitation would be harmful to the child while
Father engaged in such services, as harm was never reported in their 100-plus visits
together. See C.A.T., 10 So. 3d at 685; cf. R.W. v. Dep’t of Child. & Fams., 228 So.
3d 730 (Fla. 5th DCA 2017) (determining parent not amenable to court-ordered
services where there was “absolutely no reasonable basis to believe [the mother]
will improve”).
Finally, Florida courts consider a parent’s efforts at rehabilitation when
determining if termination is the least restrictive means. See generally J.J. v. Dep’t of
Child. & Fams., 994 So. 2d 496 (Fla. 4th DCA 2008) (where termination not least
restrictive means when mother, who was previously convicted of aggravated child
abuse of another child, engaged in voluntary counseling, parenting classes, and 10 regular visitation of subject twins but was not provided case plan); V.M. v. Dep’t of
Child. & Fams., 922 So. 2d 1085 (Fla. 4th DCA 2006) (where Department did not
demonstrate reasonable efforts toward reunification for father who, for seven
months between incarcerations: regularly visited child, attended a court hearing, and
completed one voluntary task); cf. R.K. v. Dep’t of Child. & Fams., 898 So. 2d 998
(Fla. 5th DCA 2005) (where termination was least restrictive means for mother with
15-year history of drug abuse and criminal activity, plus prior removal of another child,
who left substance abuse program prior to completion and refused Department’s
offer of voluntary services). Here, Father requested voluntary services, which
included counseling and a psychological evaluation, completed all of them as soon
as they were referred, and continued with individual counseling. Additionally, as part
of his sentence for DWI, he completed a substance abuse treatment program. After
his home study was negative and unlikely to change, he pursued relocation to
Florida, driving back and forth to secure an apartment, while also working toward
placement of the child with a friend in North Carolina. When the court ordered an
updated psychological evaluation and the Department would not arrange it in North
Carolina, he made arrangements to travel to Florida—without assistance from the
Department—to complete it. While incarcerated, he obtained his GED diploma and
HVAC certification, and he attended 12-step meetings for substance abuse. In
addition, it is undisputed that Father had video visits with the child two to four times
per week prior to his first incarceration, resumed that practice after incarceration, 11 and also travelled to Florida to visit the child in person.
Clearly the trial court was concerned with Father’s criminal history. Appellees
contend that additional services would not remedy the essential problem of Father’s
criminal propensities, a history that prohibits safe reunification, but Appellees
provide no authority connecting a parent’s criminal history with an inability to benefit
from court-ordered services. Instead, Appellees largely rely on S.M., 202 So. 3d
769, where the Florida Supreme Court found the least restrictive means test met,
concluding that “the material facts in the underlying termination of parental rights
trial . . . demonstrate the extensive efforts made by the Department to reunify the
mother with her children before it filed a petition to terminate parental rights.” Id. at
773. The extensive efforts included three case plans plus four years of services. Id.
at 783. But the mother refused to comply, did not visit the children on a regular
basis, routinely missed court hearings, and conceded that reunification would be
harmful to the children. Id. at 772–74. The instant case does not reflect such efforts
by the Department or non-compliance by Father.
That same history was utilized in the trial court’s analysis of whether the child
could be safely reunified with Father. At trial, the bulk of the State’s questions
concerned Father’s criminal history. The only exhibit entered by the State as to him
was Father’s judgment and sentence from the 2005 arson case, and Father’s
criminal history comprised the majority of the trial court’s findings. However, Father
has no history of harming children in general or this child in particular. 12 We recognize that time is of the essence in permanency cases and that, while
Father never harmed the child, the instability of impermanency itself can cause
harm. S.M., 202 So. 3d at 781 (“The Legislature has also made clear that ‘[t]ime is
of the essence’ in providing permanency for children requiring that, if possible,
children should be placed in a permanent living situation within one year of coming
into care.” (citation omitted)); see B.K. v. Dep’t of Child. & Fams., 166 So. 3d 866,
876–77 (Fla. 4th DCA 2015) (recognizing that harm can arise from continued
instability in child’s life).
Here, the child has never been in Father’s custody and instead has been with
the same caregiver for the four years preceding the trial, a caregiver who has
expressed an interest in adopting him. However, much of the delay was outside of
Father’s control. Father pursued custody immediately and requested a home study,
then pursued two other options as soon as the home study was negative. He
completed his voluntary tasks promptly upon referral and resumed visitation as soon
as he was released from jail. As noted by the trial court, the first TPR trial was
protracted for close to one year due the pandemic—and then further delayed when,
after finding that the Department had not established grounds for termination of
parental rights, the trial court sua sponte granted a new trial that did not commence
until one year later. As such, this is not a case of a child enduring impermanency
while waiting for a slow-moving parent to demonstrate responsibility by completing
one—or multiple—case plans. 13 In sum, cases permitting termination of parental rights without the provision of
a case plan generally involve extraordinary circumstances. S.M., 202 So. 3d at 778
(“The determination of the least restrictive means must be evaluated in light of the
right being terminated: to be a parent to one’s child. Consideration of this prong is
all the more critical in the extraordinary case, where the Department does not offer
the parent the chance to comply with the requirements of a case plan and be
reunited with his or her child . . . .”). This Court has articulated specific examples of
such extraordinary cases:
[O]ur supreme court has recognized, in certain “extraordinary circumstances,” termination of parental rights without the use of a case plan is the least restrictive means to protect a child. Those extraordinary circumstances include severe or continuing abuse through continuing involvement and egregious abuse as found in then section 39.464, paragraphs (3) and (4), now renumbered as section 39.806(1)(c) and (1)(f).
R.W., 228 So. 3d 730 at 733 (relying on In re T.M. & F.M., 641 So. 2d 410, 413
(Fla. 1994)) (emphasis added); see also In Int. of X.W., 255 So. 3d 882, 890 (Fla.
2d DCA 2018) (“We are confident that in cases like this one—involving the sexual
battery of an eleven-year-old resulting in the conception of a child—such
extraordinary circumstances exist.”).
Under the facts of this case, and in the absence of other reasonable efforts at
reunification, a case plan should have been provided to Father, with the opportunity
to perform satisfactorily thereunder, before DCF pursued severance of his parental
rights. See S.M., 202 So. 3d at 777–78. Accordingly, there was not competent 14 substantial evidence that termination was the least restrictive means of protecting
the child.
REVERSED and REMANDED.
SASSO and WOZNIAK, JJ., concur.