Third District Court of Appeal State of Florida
Opinion filed August 8, 2018. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D18-46 Lower Tribunal No. 15-15090 ________________
C.R., the Mother, Appellant,
vs.
Department of Children and Families and Guardian ad Litem Program, Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Maria Sampedro-Iglesia, Judge.
Steven Grossbard, for appellant.
Karla Perkins, for appellee Department of Children & Families; Thomasina Moore (Tallahassee), Statewide Director of Appeals, for appellee Guardian ad Litem Program; Vincent F. Vaccarella, P.A., and Craig Robert Lewis (Fort Lauderdale), Pro Bono, Guardian ad Litem Program Defending Best Interest Project, for appellee Guardian ad Litem Program.
Before ROTHENBERG, C.J., and SALTER and FERNANDEZ, JJ. ROTHENBERG, C.J.
C.R. (“the Mother”) appeals from an order terminating her parental rights as
to her minor child, D.R.A. (“the Child”). Because the Department of Children and
Families (“the Department”) failed to establish either of the statutory grounds
alleged in its petition, we reverse.
FACTS AND PROCEDURAL HISTORY
A. Removal of the Children and Adjudication of Dependency
In late January 2015, the Mother and her teenage daughter, B.D., engaged in
a physical altercation, which resulted in B.D. being arrested and “Baker Acted.”1
Thereafter, the Department took the Mother’s three children into protective
custody—A.D. (born early 1998), who also had a history of physical altercations
with the Mother; B.D. (born late 1999); and the Child (born early 2008). The
following day, the Department filed a dependency shelter petition alleging that the
Mother’s three children had been abused, abandoned, or neglected, or were in
imminent danger of illness or injury as a result of the abuse, abandonment, or
neglect. Following a shelter review hearing, the trial court entered an order on
January 27, 2015, placing the three children in shelter care.2
On February 10, 2015, the Department filed a verified dependency petition,
1See § 394.451, Fla. Stat. (2015). 2The Child was initially placed with a non-relative, the Mother’s friend. However, on June 4, 2015, the Child was removed from the non-relative and placed into foster care.
2 alleging that the Mother had abused, abandoned, neglected and/or placed the three
minor children at imminent risk of harm based on the Mother engaging in domestic
violence with her two teenage daughters, A.D. and B.D. The Mother consented to
the dependency petition and, on July 24, 2015, the Mother’s three children were
adjudicated dependent. The order adjudicating the children dependent states that
the Mother has mental health issues that, if left untreated, will interfere with her
ability to safely parent her children; the Mother tested positive for illegal drugs on
January 27, 2015; the Mother and B.D. engaged in domestic violence on January
21, 2015, while B.D. was allegedly intoxicated and out of control; and the Child
had excessive absences from school since August 2015.
B. The Case Plans Filed Prior to the Petition to Terminate the Mother’s Parental Rights
To address the circumstances stated in the dependency order, the
Department issued five case plans between August 18, 2015, and March 14, 2017,
with each stating that the primary permanency goal was reunification.3
Specifically, the case plans required the Mother to complete and/or participate in
the following tasks and/or services: (1) complete a Level of Care Assessment; (2)
submit to a psychological evaluation and receive medication management; (3)
3 The case plans were issued on August 18, 2015, November 5, 2015, April 4, 2016, September 28, 2016, and March 14, 2017. The last three case plans did not include A.D. because she had reached the age of majority. Other case plans were filed after the Department filed its petition to terminate the Mother’s parental rights on May 2, 2017, which stated that the primary permanency goal was now adoption.
3 attend parenting skills classes once a week for fourteen weeks to address the
domestic violence between the Mother and her two teenage daughters, A.D. and
B.D.; (4) attend family therapy; (5) attend individual psychotherapy due to the
Mother being diagnosed with a mental health disorder, during which therapy, the
Mother shall increase coping skills and gain insight; (6) participate in a substance
abuse program and submit to random urinalyses for the duration of the case plan;
and (7) show responsibility for the children’s welfare.
C. The Trial Court’s Orders on Judicial Review/Permanency Review
The trial court addressed the Mother’s compliance with the case plans and
her progress in four separate Orders on Judicial Review/Permanency Review
(“Orders on Judicial Review”) filed on November 4, 2015, April 4, 2016,
September 28, 2016, and March 20, 2017. The first order issued on November 4,
2015, showed little progress by the Mother except for her submitting to the
psychological evaluation.
However, in the trial court’s second Order on Judicial Review filed on April
4, 2016, the trial court noted that the Mother had completed the parenting class, the
substance abuse evaluation, and the psychological evaluation. The Mother was
also participating in an outpatient substance abuse program and individual
counseling. Although the case plan in effect at that time stated that the Mother was
to attend family counseling, the trial court’s order made no finding as to family
4 counseling.4 The trial court concluded that the Mother had not “reached
substantial compliance & is in partial compliance due to ongoing services,” but
noted that the Mother was in compliance with the court-ordered visitation.
The trial Court’s third Order on Judicial Review dated September 28, 2016,
found that the Mother was continuing to make progress. The Mother had
completed the parenting classes, the substance abuse evaluation, and the
psychological evaluation. She was participating in an outpatient substance abuse
program and individual counseling, she was maintaining adequate housing, and she
had been complying with the court-ordered visitation. Once again, the trial court
concluded that the Mother was in partial compliance but that she had not reached
substantial compliance with the case plan and made no reference to family
counseling. Importantly, however, the order states: “Mother is fully compliant
& the Child [D.R.A.] is transitioning to [the Mother’s care].” (emphasis added).
The case plan goal continued to be reunification, and the trial court entered an
order changing the Mother’s visitation with the Child from supervised visitations
to unsupervised visitations with a minimum of twice a week and for a maximum of
six hours per visit.
On March 20, 2017, the trial court entered its fourth and final Order on
4 It appears that there was a substantial delay in referring the Mother to family counseling that was not attributable to the Mother. The Mother and the Child did not commence family therapy until March 3, 2017.
5 Judicial Review. This order provided that the Mother had completed the parenting
classes, the substance abuse evaluation, and the psychological evaluation; the
Mother was currently participating in outpatient substance abuse program and
individual counseling5; and the Mother was maintaining adequate housing. The
trial court, however, again determined that the Mother had not reached substantial
compliance and was “in partial compliance due to services ongoing.” (emphasis
added). Notably, the trial court once again made no finding as to family
counseling, although family counseling had commenced approximately two weeks
earlier. The order continued to state that the primary goal was reunification.
D. The Petition for Termination of Parental Rights
On May 2, 2017, approximately two months after the fifth case plan was
issued, the Department filed a petition to terminate the Mother’s parental rights
based on two statutory grounds,6 sections 39.806(1)(e)1., and 3., Florida Statutes
(2017), which provide as follows:
5 As will be discussed later in this opinion, the evidence presented at trial actually indicates that the Mother completed the outpatient substance abuse program and individual counseling in September 2016. However, in May 2017, the Mother voluntarily agreed to be re-referred to additional individual therapy to address her past trauma. 6 As B.D. was reunified with the Mother on the same day the Department filed its
petition for termination of parental rights, the petition pertained only to the Child, D.R.A. Further, the petition for termination of parental rights was filed as to both the Mother and the Child’s legal father. The Mother informed the Department that the Child’s legal father had been deported to Guatemala and that his whereabouts are unknown. The Child’s legal father’s parental rights were terminated via publication, and the termination of his parental rights are not at issue in this appeal.
6 (1) Grounds for the termination of parental rights may be established under any of the following circumstances: .... (e) When a child has been adjudicated dependent, a case plan has been filed with the court, and: 1. The child continues to be abused, neglected, or abandoned by the parent or parents. The failure of the parent or parents to substantially comply with the case plan for a period of 12 months after an adjudication of the child as a dependent child or the child’s placement into shelter care, whichever occurs first, constitutes evidence of continuing abuse, neglect, or abandonment unless the failure to substantially comply with the case plan was due to the parent’s lack of financial resources or to the failure of the department to make reasonable efforts to reunify the parent and child. The 12- month period begins to run only after the child’s placement into shelter care or the entry of a disposition order placing the custody of the child with the department or a person other than the parent and the court’s approval of a case plan having the goal of reunification with the parent, whichever occurs first; or .... 3. The child has been in care for any 12 of the last 22 months and the parents have not substantially complied with the case plan so as to permit reunification under s. 39.522(2) unless the failure to substantially comply with the case plan was due to the parent's lack of financial resources or to the failure of the department to make reasonable efforts to reunify the parent and child.
E. The Termination of Parental Rights Hearing and the Final Judgment Terminating the Mother’s Parental Rights as to the Child
The termination of parental rights (“TPR”) hearing was held over a three-
day period commencing in early September 2017, and concluding in late October
2017. In December 2017, the trial court entered its final judgment terminating the
Mother’s parental rights as to the Child, finding that the Department had
established by clear and convincing evidence both statutory grounds.7 The
7 Mother’s appeal followed.
ANALYSIS
The Mother contends that the trial court erred by terminating her parental
rights as to the Child. Because there was no competent, substantial evidence to
support the trial court’s determination that the Department established either of
the two statutory grounds alleged in its petition, we agree.
To terminate parental rights, the Department is required to establish by clear
and convincing evidence the existence of at least one statutory ground for
termination, see § 39.806, Fla. Stat. (2017), and that termination is in the manifest
best interest of the child and is the least restrictive means to protect the child from
serious harm. See B.K. v. Dep’t of Children & Families, 166 So. 3d 866, 873 (Fla.
4th DCA 2015). An appellate court’s review of the final judgment terminating
parental rights “is limited to whether competent, substantial evidence supports the
trial court’s final judgment, and whether the appellate court cannot say that no one
could reasonably find such evidence to be clear and convincing.” J.P. v. Fla. Dep’t
of Children & Families, 183 So. 3d 1198, 1203 (Fla. 1st DCA 2016) (quoting N.L.
v. Dep’t of Children & Family Servs., 843 So. 2d 996 (Fla. 1st DCA 2003))
(internal quotation marks omitted); see also T.P. v. Dep’t of Children & Families,
7 The trial court also found that that termination was in the manifest best interest of the Child and that termination is the least restrictive means to protect the Child from serious harm.
8 935 So. 2d 621, 624 (Fla. 3d DCA 2006) (“The standard of review for challenges
to the sufficiency of the evidence supporting a termination of parental rights is
whether the trial court’s order is supported by substantial competent evidence.”).
A. The Statutory Grounds
1. Section 39.806(1)(e)1.
Section 39.806(1)(e)1. permits the termination of parental rights when a
child is adjudicated dependent, a case plan has been filed with the trial court, and
the parent fails “to substantially comply with the case plan for a period of 12
months after an adjudication of the child as a dependent child or the child’s
placement into shelter care, whichever occurs first. . . .” § 39.806(1)(e)1.
(emphasis added). This statutory provision further states that a parent’s failure to
substantially comply “constitutes evidence of continuing abuse, neglect, or
abandonment unless the failure to substantially comply with the case plan was due
to the parent’s lack of financial resources or to the failure of the [D]epartment to
make reasonable efforts to reunify the parent and child.” § 39.806(1)(e)1. Section
39.01(78), Florida Statutes (2017)8, provides that “‘substantial compliance’ means
that the circumstances which caused the creation of the case plan have been
significantly remedied to the extent that the well-being and safety of the child will
not be endangered upon the child’s remaining with or being returned to the child’s
8 Effective July 1, 2018, the definition of “substantial compliance” appears in section 39.01(84), Fla. Stat. (2018).
9 parent.”
In the instant case, the Child was adjudicated dependent and case plans were
filed with the trial court. However, as will be addressed below, there was no
competent, substantial evidence to support the trial court’s determination that the
Department established by clear and convincing evidence that the Mother failed to
“substantially comply” with the case plan.
(a) The Case Plan Tasks
The case plan required the Mother to complete several tasks to address and
remedy the “circumstances which caused the creation of the case plan.” The
record before this Court, including the testimony at the TPR hearing and the
exhibits introduced at the TPR hearing, reflects that the Mother completed the
following assigned tasks:
1) Complete a Level of Care Assessment
The Mother completed the Level of Care Assessment on March 15, 2015,
which was prior to the issuance of the initial case plan in August 2015.
2) Submit to a Psychological Evaluation and Receive Medication Management
The Mother submitted to a psychological evaluation on February 3, 2015,
conducted by Dr. Rebecca Harvey, a clinical psychologist. Dr. Harvey’s testimony
at the TPR hearing and her report, which was introduced into evidence, reflect that
the Mother has a history of volatile relationships, mood issues, and mood
10 management issues, which would be consistent with a bipolar anxiety issue. As to
the Mother’s parenting skills, Dr. Harvey concluded that the Mother was
overwhelmed and “bewildered” as to how to manage her daughters’ aggressive
behaviors. During the evaluation, the Mother acknowledged that many of her
childhood experiences, including physical and mental abuse by her father, have
impacted her parenting abilities.
Based on the evaluation, Dr. Harvey opined that the Mother suffers from a
bipolar disorder, a generalized anxiety disorder, a post-traumatic stress disorder,
and a substance abuse disorder. Dr. Harvey concluded that the Mother was in need
of various services to enable her to provide a safe and healthy environment for her
children. Dr. Harvey recommended that the Mother participate in individual
therapy to: (1) address her mood issues; (2) address her childhood experiences and
to examine how her childhood impacts her parenting; (3) work on developing
positive coping skills; and (4) address her tendency to relate to her children as
peers. In addition, Dr. Harvey recommended that the Mother continue to regularly
see a psychiatrist and to receive medication management; attend a substance abuse
treatment program; attend parenting classes to learn how to communicate with her
children and cope with her children’s defiant behavior; and participate in family
therapy with her children to learn how to solve problems, de-escalate arguments,
and express thoughts and feelings appropriately. These recommendations were the
11 foundation for the tasks assigned to the Mother in the case plans.9
The record reflects that the Mother began seeing a psychiatrist, Dr. Priscilla
Borrego, in November 2015. Dr. Borrego diagnosed the Mother as being bipolar
and prescribed several medications. At the TPR hearing, Dr. Borrego testified that
the Mother has been compliant with taking her medications and attending her
appointments. Dr. Borrego also testified that she has seen improvements in the
Mother—the Mother is calmer, has fewer mood swings, speaks less rapidly, is
sleeping better, has a better appetite, and attends her sessions in better spirits.
3) Attend Parenting Skills Classes
The Mother commenced parenting classes on August 31, 2015, and
successfully completed the classes on December 21, 2015. Janet Martinez, the
Parenting Facilitator at the Family Resource Center, testified that the Mother
submitted to the Adult-Adolescent Parenting Inventory Assessment (“AAPI-2”)
both pre-services and post-services, and the results of these assessments were
outlined in Ms. Martinez’s final report that was introduced into evidence at the
TPR hearing. Ms. Martinez’s final report states:
The [AAPI-2] is designed to assess the parenting and child rearing attitudes of adults and adolescent parents and pre parent populations. Based on the known parenting and child rearing behaviors of abusive parents, responses to the inventory provide an index for practicing
9 Dr. Harvey testified that following her assessment of the Mother, she believed that the Mother’s individual therapy should also include “trauma” therapy, but that “[l]ooking back on [her] report [she] didn’t exactly use those words.”
12 behaviors know to be attributable to child abuse and neglect. Responses to the AAPI-2 provide an index of risk in five specific parenting and child rearing behaviors:
Construct A- Inappropriate Expectations of Children Construct B- Parental Lack of Empathy towards Children’s Needs Construct C- Strong Parental Belief in the Use of Corporal Punishment Construct D- Reversing Parent-Child Family Roles Construct E- Oppressing Children’s Power and Independence
For each parenting construct, the score can range from one to ten, with a
score of one to three indicating high risk, four to seven indicating medium risk, and
eight to ten indicating low risk. Ms. Martinez’s report sets forth the following pre-
classes and post-classes scores for each parenting “construct”: (A) inappropriate
expectations of children: pre-parenting classes—3 (high risk); post-parenting
classes—9 (low risk); (B) parental lack of empathy towards children’s needs: pre-
parenting classes—2 (high risk); post-parenting classes—8 (low risk); (C) strong
parental belief in use of corporal punishment: pre-parenting classes—5 (medium
risk); post-parenting classes—9 (low risk); (D) reversing parent-child family roles:
pre-parenting classes—3 (high risk); post-parenting classes—5 (medium risk); and
(E) oppressing children’s power and independence: pre-parenting classes—5
(medium risk); post-parenting classes—9 (low risk). Thus, Ms. Martinez’s report
reflects that the Mother not only completed the parenting classes, but she showed
significant improvement as to each parenting “construct” following the parenting
classes, with four of the five constructs now being in the “low risk” category and
13 one construct being in the “medium risk” category.
4) Attend Family Therapy
Although family therapy was a task included in the initial case plan issued in
August 2015, the Mother did not commence family therapy with the Child until
March 3, 2017, only six months before the TPR hearing commenced, and the
family therapy was ongoing at the time of the hearing. It does not appear that the
delay in commencing family therapy was attributable to the Mother.
Mr. Jeremiah Model, a registered mental health intern at Advance Health
Community Services, described a positive relationship between the Mother and the
Child:
[The Child] has a lot of affection towards the mom. There is a lot of appropriate touch. [What] I mean by appropriate touch, there is hugging. There [are] kisses, and she seems pretty happy in my opinion. . . . From observations[, the Child] seems to be very elated. . . . Like I would ask her questions about the weekend and how it went with mom, and she seems pretty happy. And she seems very happy when she is leaving with mom after the sessions because they will usually have events planned like going out to restaurants and spending quality time with each other or going to the pool or going to the beach or some sort.
Mr. Model also testified that although the Child is guarded during therapy, the
Mother and the Child have progressed, but are still in need of family therapy. Mr.
Model could not, at that point, recommend reunification because “six months is
not enough for me to gain all the information.” Thus, Mr. Model’s testimony
reflects that the mother had made progress during family therapy, but that family
14 therapy had not been completed, and six months of therapy was not enough for him
to gain the necessary information to make a recommendation. However, based on
the delayed referral to family therapy, the failure of the Mother to complete family
therapy at the time of the hearing was not attributable to her.
5) Attend Individual Therapy
The Mother was referred to a combined substance abuse therapy and
individual therapy at Banyan Health Systems. The therapies commenced in
December 2015, and were completed in September 2016, approximately a year
before the commencement of the TPR hearing.
Thereafter, in May 2017, the Mother voluntarily agreed to additional
individual therapy at Jessie Trice Community Health Center and began therapy
with Gladys Amador, a mental health counselor. Ms. Amador conducted the initial
screening and assessment of the Mother on June 12, 2017, and the final session
was on August 3, 2017, approximately a month before the TPR hearing
commenced. Ms. Amador testified that she generally conducts twelve sessions of
therapy, but she only had five sessions with the Mother due, in part, to conflicts in
Ms. Amador’s schedule and the Mother’s hospitalization in the month of August.
The focus of the twelve-week therapy period was to address the Mother’s history
of trauma.10 Ms. Amador testified that five sessions is not enough to make
10As stated earlier, Dr. Harvey testified that her report should have provided that the Mother’s individual therapy should also include “trauma” therapy. Further,
15 significant progress because the five sessions were “really rapport building.”
(emphasis added). However, Ms. Amador noted that during her five sessions with
the Mother, the Mother was very engaged and open to suggestions.
6) Participate in a Substance Abuse Program and Remain Drug Free
The Mother participated in an outpatient substance abuse program at Banyan
Health Systems with Lorena Paar, an outpatient substance abuse therapist. Ms.
Paar’s reports, which were introduced into evidence, and her testimony at the TPR
hearing reflect that the Mother commenced the outpatient substance abuse program
in December 2015 and successfully completed the program in September 2016.
While attending the program, the Mother was subject to random drug testing, and
on November 4, 2015, the trial court ordered the Mother to submit to urinalyses
three times per week. The testimony at the TPR hearing reflects that the Mother
had been drug free for nearly two years.
7) Show Responsibility for the Children’s Welfare
As to this final task, the case plan indicated that this task would be deemed
completed upon achieving all goals of the case plan.
b) Substantial Compliance with the Case Plan
We acknowledge that completion of the tasks in a case plan does not
unlike the past case plans, the September 28, 2016 case plan provided for the first time that the Mother “should engage in evidence based trauma counseling in order to deal with past trauma.” (emphasis added).
16 necessarily equate to “substantial compliance” with a case plan. As previously
stated, “substantial compliance” with a case plan “means that the circumstances
which caused the creation of the case plan have been significantly remedied to the
extent that the well-being and safety of the child will not be endangered upon the
child’s remaining with or being returned to the child’s parent.” § 39.01(78). In the
instant case, the order adjudicating the Child and her siblings, A.D. and B.D.,
dependent reflects that the following “circumstances” caused the creation of the
case plans: (a) the Mother’s mental health issues, which if left untreated, will
interfere with her ability to safely parent her children; (b) the Mother tested
positive for drugs; (c) the Mother engaged in domestic violence with B.D.; and (d)
the Child had excessive absences from school.
The record before this Court indicates that these “circumstances” have been
“significantly remedied.” First, the Mother’s mental health issues have been
addressed. She is currently under the care of psychiatrist, and the Mother is
attending her appointments and taking her prescribed medications. Moreover, the
psychiatrist testified that she has seen improvements in the Mother. Second, the
Mother is not taking or using drugs. She successfully completed the outpatient
substance abuse program and has tested negative for drugs for almost two years.
Third, as to the Mother engaging in domestic violence with B.D., the record
indicates that this “circumstance” has been “significantly remedied.” B.D. is
17 currently living with the Mother; B.D. received “wrap around” services, including
therapy; and there have been no physical altercations between the Mother and B.D.
since the Department permitted B.D. to move back into the Mother’s home in May
2017. The record further reflects that A.D. and A.D.’s child are no longer living
with the Mother, and there have been no further incidents of domestic violence
between A.D. and the Mother. In addition, the Mother successfully completed
parenting classes, and her post-classes scores on the AAPI-2 show that the Mother
has significantly improved, with four of the five parenting constructs being at “low
risk” and one being at “medium risk.” Finally, there is no indication in the record
that the Mother would continue to allow the Child to miss so many days of school.
Thus, the record does not contain competent substantial evidence that the Mother
failed to substantially comply with her case plan.
This Court’s decision in C.G. v. Department of Children & Families, 67 So.
3d 1141, 1142 (Fla. 3d DCA 2011), is factually distinguishable from the facts in
the instant case. In C.G., the minor child’s mother failed to substantially comply
with her case plan, and the trial court entered a final order terminating C.G.’s
parental rights pursuant to section 39.806(1)(e)1. C.G. initially consented to her
child being adjudicated dependent after the court determined that C.G. had mental
health issues. Id. at 1142-43. The child was returned to C.G. for a brief period of
time, but was returned to state custody after C.G. was convicted of prostitution. Id.
18 at 1143. C.G. was assigned five reunifications plans over a two-year period, with
each plan requiring C.G. to maintain a job, secure safe and consistent housing,
undergo mental health evaluations and medication management, attend substance
abuse therapy, and attend parenting classes. Id. at 1144. The evidence presented
at the TPR hearing reflected that C.G. failed to complete the psychotherapy
sessions, the medication management program, and the substance abuse therapy,
and that C.G. refused to follow a court order directing her to enter an inpatient
substance abuse program. Id. Although C.G. completed the assigned parenting
classes, her scores on the post-services test led the case manager to opine that
reunification was not a safe option for the child. Id. On appeal, this Court
affirmed the final order terminating C.G.’s parental rights, concluding as follows:
[T]he trial court’s finding that clear and convincing evidence supported the termination of parental rights was based, in part, on competent and substantial evidence contained in the underlying dependency records. The state additionally demonstrated, by clear and convincing testimonial evidence, that C.G. failed to substantially comply with the case plans and made little effort to remedy the harmful behavior and circumstances that initially brought her child into foster care. We thus agree with the trial court that termination of [C.G.’s] parental rights is the least restrictive means of protecting the ultimate welfare of the child.
Id. at 1144-45 (internal quotation marks and citation omitted).
The facts in C.G. could not be more factually disparate from the facts in the
instant case. Unlike C.G., in the instant case, the Mother has completed all tasks
and/or services assigned to her in her case plans. Further, unlike C.G., the Mother
19 in the instant case remedied the circumstances that initially brought her children
into foster care. Basically, the Mother has done everything the Department has
asked her to do—(1) she completed a Level of Care Assessment; (2) she submitted
to a psychological evaluation, and she is compliant with her psychiatric
appointments and taking the medications prescribed by her psychiatrist; (3) she
attended parenting skills classes, and unlike C.G., the Mother’s post-services
scores increased dramatically; (4) she is attending family therapy; (5) she
completed individual therapy, and the Mother voluntarily agreed to additionally
therapy; and (6) she participated in a substance abuse program and has remained
drug-free for almost two years. Additionally, the Mother is employed and is
maintaining suitable housing.
c) The Mother’s Isolated Statement to the Child
Despite the Mother’s significant efforts, completion of services, and
tremendous progress, the Department argued and the trial court found that the
Mother had not gained sufficient “insight.” This determination was based
primarily on a single incident that occurred a couple of days prior to the
commencement of the TPR hearing. During one of the Mother’s unsupervised
visitations, the Mother told the Child that if the trial court terminated her parental
rights and the Child stays with the foster mother, the Mother will move back to
New York, the Child will never see the Mother again, and the Mother will have
20 another girl. Following this statement, the Child became sad and reported this
conversation to the foster mother. The Mother acknowledged during the TPR
hearing that she was aware of the trial court’s order prohibiting her and others from
discussing the case unless the discussion took place in a therapeutic setting.
We agree with the trial court’s determination that this conversation was
inappropriate. However, this one isolated incident was insufficient to support the
trial court’s finding that the Mother failed to substantially comply with her case
plan, warranting the termination of the Mother’s parental rights. The Mother began
unsupervised visitation with the Child on September 28, 2016, almost a year prior
to the commencement of the TPR hearing. The Mother’s inappropriate
conversation with the Child was the only inappropriate conversation during the
almost one-year period. Further, the evidence reflects that the Child is bonded to
and loves her Mother. See L.A.G. v. Dep’t of Children & Family Servs., 963 So.
2d 725, 727 (Fla. 3d DCA 2007) (“The only evidence that the mother deviated
from the case plan were two occasions when she had contact with the father and
paternal grandmother. These two incidents are insufficient to support a finding
that the mother failed to substantially comply with her case plan and to terminate
her parental rights.”).
Accordingly, based on the above analysis, we conclude that there was a lack
of competent, substantial evidence to support the trial court’s finding that the
21 Department established by clear and convincing evidence the statutory ground set
forth in section 39.806(1)(e)1.
2. Section 39.806(1)(e)3.
The Department also sought termination pursuant to section 39.806(1)(e)3.,
which permits the termination of parental rights when a child is adjudicated
dependent, a case plan has been filed with the trial court, and
[t]he child has been in care for any 12 of the last 22 months and the parents have not substantially complied with the case plan so as to permit reunification under s. 39.522(2) unless the failure to substantially comply with the case plan was due to the parent’s lack of financial resources or to the failure of the [D]epartment to make reasonable efforts to reunify the parent and child.
(emphasis added).11
It is undisputed that the Child “has been in care for any 12 of the last 22
months.” However, for the reasons previously stated, we conclude that there was a
lack of competent, substantial evidence to support the trial court’s finding that the
Mother failed to substantially comply with her case plan and that the circumstances
that caused the Child’s out-of-home placement have not been “remedied to the
11 Section 39.522(2), Florida Statutes (2017), provides as follows: In cases where the issue before the court is whether a child should be reunited with a parent, the court shall review the conditions for return and determine whether the circumstances that caused the out-of-home placement and issues subsequently identified have been remedied to the extent that the return of the child to the home with an in-home safety plan prepared or approved by the department will not be detrimental to the child’s safety, well-being, and physical, mental, and emotional health.
22 extent that the return of the child to the home with an in-home safety plan
prepared or approved by the department will not be detrimental to the child’s
safety, well-being, and physical, mental, and emotional health.” § 39.522(2)
(emphasis added). Accordingly, we conclude that the Department failed to
establish by competent substantial evidence the statutory ground set forth in
section 39.806(1)(e)3.
B. Manifest Best Interest of the Child and Least Restrictive Means
The undisputed record evidence is that the Child remains bonded with the
Mother, and several witnesses supported the reunification of the Mother and the
Child. However, we do not need to address whether the trial court’s findings that
termination was in the manifest best interest of the Child and is the least restrictive
means to protect the Child from serious harm are supported by clear and
convincing evidence because we have concluded that the there was a lack of
competent, substantial evidence to support the trial court’s finding that the
Department established by clear and convincing evidence the statutory grounds set
forth in the petition to terminate the Mother’s parental rights. See B.K. v. Dep’t of
Children & Families, 166 So. 3d 866, 873 (Fla. 4th DCA 2015).
We do note, however, that despite the Mother’s significant progress, the
child therapist found that Child has “shown little, measureable improvement” since
therapy began, and the Child does not “open up” during therapy as to her
23 relationship with her Mother. Although the record is unclear as to why the Child
does not “open up” during therapy, the record reflects that the Child has met with
approximately five different therapists since being removed from the Mother’s
home and she did not receive therapy for at least three months.12
The constant change of therapists may have contributed to the Child not
opening up during therapy. As one expert testified at the TPR hearing, it takes
approximately five sessions for a therapist to build “rapport” with a patient. Thus,
it is unclear whether the Child’s failure to “open up” about her Mother is
attributable to some sort of past trauma or to the Child not receiving therapy for at
least three months or from the Child being subjected to so many different
therapists since being removed from the Mother’s home. At this point, the
Department should attempt to slowly reunify the Mother and Child and to
coordinate therapy for the Child with the same therapist, if possible.
Accordingly, we reverse the order terminating the Mother’s parental rights
as to the Child, D.R.A., and remand for further proceedings consistent with this
12 On October 5, 2016, the trial court issued a rule to show cause ordering Family Resource Center to appear before the trial court to show cause why it should not be held in indirect civil contempt for failing to comply with the trial court’s order pertaining to individual therapy for the Child. The rule to show cause reflects that the trial court ordered therapy for the Child, and although therapy was commenced, it had ceased, and the Child had not received any therapy for three months, without any explanation. Following the show cause hearing, the trial court did not hold Family Resource Center in indirect civil contempt, finding that the Child was now receiving therapy.
24 opinion.
Reversed and remanded.