C.D. v. Florida Department of Children & Families

164 So. 3d 40, 2015 WL 2374420
CourtDistrict Court of Appeal of Florida
DecidedApril 27, 2015
DocketNo. 1D14-4688
StatusPublished
Cited by6 cases

This text of 164 So. 3d 40 (C.D. v. Florida Department of Children & Families) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
C.D. v. Florida Department of Children & Families, 164 So. 3d 40, 2015 WL 2374420 (Fla. Ct. App. 2015).

Opinion

[41]*41 ON MOTIONS FOR REHEARING, REHEARING EN BANC, CLARIFICATION AND/OR CERTIFICATION

THOMAS, J.

Appellee, Department of Children and Families (DCF), has filed a Motion for Clarification, Rehearing and Rehearing En Banc, and the Guardian ad Litem (GAL) has filed a Motion for Rehearing, Rehearing En Banc, Clarification and/or Certification. We deny all of the motions except the motion for clarification, and withdraw our previous opinion of February 27, 2015, and substitute this opinion in its place.

Appellant (the Mother) appeals a final order terminating parental rights as to her two children. She challenges the court’s order which determined that termination was warranted under sections 39.806(l)(c) and 39.806(l)(e), Florida Statutes, that it was the least restrictive means of protecting the children from harm, and that it was in the children’s best interests. We affirm as to all but one of these contentions. We reverse the trial court’s ruling that termination was the least restrictive means of protecting the children from harm.

Factual Summary

Relevant to the issue of least restrictive means, the DCF presented evidence by a psychologist, Dr. Flynn, retained to conduct family therapy. Dr. Flynn testified that the children did not appear to be negatively affected by seeing the Mother only once a week, but he had concerns about the Mother’s ability to independently parent the children. Dr. Flynn opined that reunification would póse a significant risk of harm to the children’s well being, based largely on her lack of meaningful progress in improving her parenting skills, particularly concerning the children’s behavioral issues, and he did not feel there was any reasonable basis to believe that the Mother would improve with additional services. Dr. Flynn had no objection, however, in discharging the family from further therapy, because supervised visitation was safe to resume.

DCF’s case coordinator testified that, based on the GAL’s report, although the parents have a bond with the children, the GAL did not believe termination would harm the children, because the maternal aunt wished to adopt them and would allow contact with the Mother. Nevertheless, the GAL recommended terminating the Mother’s parental rights. Much of the rest of the testimony from the various service providers centered on the Mother’s low cognitive abilities, her lack of progress in developing the skills and mindset necessary to safely parent the children, and their doubts that any further services would assist the Mother.

In its final order, the court found that DCF had satisfied the statutory requirements for terminating the Mother’s parental rights and that termination would be in the children’s manifest best interests. The court found that there was a bond between the children and the Mother, but that terminating the Mother’s parental rights would not harm the children, because the proposed adoptive aunt would allow contact between the children and their the Mother. Addressing the least restrictive means issue, the court found by clear and convincing evidence that “termination of parental rights is the least restrictive means to achieve permanency for the children because the children cannot be safely reunified with the parents today and the only option for permanency is adoption.” For this conclusion, the court pointed to the Mother’s lack of progress in remedying the issues that led to the shelter of the children, “which was her lack of appropriate parenting skills and physical abuse.”

[42]*42The court also found that, although Dr. Flynn opined the children would be safe in a supervised visitation setting, “the mere availability of a potential relative placement, especially one disclosed on the eve of trial on a petition for termination of parental rights,” did not render such a placement the least restrictive means.

The court also found that this court provided “additional guidance” on the issue of least restrictive means in A.H. v. Department of Children & Families, 144 So.3d 662 (Fla. 1st DCA 2014). The trial court found that A.H. “involved availability of a permanent placement plus the existence of a parent child relationship plus the existence of a less restrictive alternative to termination that would guard the child from serious harm.” (Emphasis in original.) The trial court found that, under the evidence here, “[although safety is secured for the children and alternative permanency options are available, there was no testimony as to the existence of any relationship between the children and their mother,” thus, “the test of A.H. is not met.”

Analysis

In termination of parental rights (TPR) cases, the standard of review is highly deferential. See N.L. v. Dep’t of Children & Families, 843 So.2d 996, 999 (Fla. 1st DCA 2003). “Where the trial court’s findings that the evidence is clear and convincing are supported by competent substantial evidence, and the appellate court cannot say that no one could reasonably find such evidence to be clear and convincing, the finding will not be set aside on appellate review.” Id. at 1000.

But “before parental rights in a child can be permanently and involuntarily severed, the state must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child.” Padgett v. Dep’t of Health & Rehab. Sevs, 577 So.2d 565, 571 (Fla.1991). And “because parental rights constitute a fundamental liberty interest, the state must establish in each case that termination of those rights is the least restrictive means of protecting the child from serious harm.” Id. Section 39.810(1), Florida Statutes, provides that “the availability of a ... placement with a relative[] may not be considered as a ground to deny the termination of parental rights,” but the applicable test here is whether termination is the least restrictive means of protecting a child from serious harm, not, as the trial court erroneously found, the least restrictive means of achieving permanency. In seeking to achieve this goal, DCF is “obliged to ‘proceed in a narrowly tailored manner.’” G.H. v. Dep’t of Children & Families, 145 So.3d 884, 886 (Fla. 1st DCA 2014) (quoting N.S. & D.R. v. Dep’t of Children & Families, 36 So.3d 776, 778 (Fla. 3d DCA 2010)).

The Mother contends that the TPR order does not pass the least restrictive means test. She asserts that DCF argued, and the court ultimately found, that termination would not harm the children, because the aunt who offered to adopt the children would allow contact with the Mother. Further, the Mother notes that the court also found that Dr. Flynn opined the children would be safe in a supervised visitation setting with the Mother. In other words, the Mother persuasively argues that terminating her parental rights is not, under the circumstances here, the least restrictive method of protecting the children, because the trial court recognized that further contact between the Mother and the children will' not endanger the [43]*43children.1 In fact, it is clear from the hearing transcript that the trial court also agreed with this reasoning, but was dissuaded from doing so based on its interpretation of this court’s decision in AH.

In AH., the child was placed in permanent guardianship. 144 So.3d at 664.

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Cite This Page — Counsel Stack

Bluebook (online)
164 So. 3d 40, 2015 WL 2374420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cd-v-florida-department-of-children-families-fladistctapp-2015.