In the Interest of E.I.F. v. Department of Children & Family Services

872 So. 2d 924, 2004 Fla. App. LEXIS 3077
CourtDistrict Court of Appeal of Florida
DecidedMarch 12, 2004
DocketNo. 2D02-5133
StatusPublished
Cited by7 cases

This text of 872 So. 2d 924 (In the Interest of E.I.F. v. Department of Children & Family Services) 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
In the Interest of E.I.F. v. Department of Children & Family Services, 872 So. 2d 924, 2004 Fla. App. LEXIS 3077 (Fla. Ct. App. 2004).

Opinions

STRINGER, Judge.

J.H., the Father, seeks review of the trial court’s order adjudicating E.I.F. dependent and terminating his parental rights to E.I.F. The Father does not challenge the adjudication of dependency but argues that the trial court erred in terminating his parental rights pursuant to section 39.806(l)(c), (l)(d)(l), (l)(d)(3), and (l)(f), Florida Statutes (2002). We affirm the adjudication of dependency and reverse the termination of parental rights.

E.I.F. was born on November 24, 2001, and sheltered by the Department of Children and Family Services (the Department) two days later based on allegations of the Mother’s continuing involvement with the Department and the pending termination of parental rights of the Mother’s [926]*926other children.1 The Father was incarcerated at the time of E.I.F.’s birth and was not identified as the Father of E.I.F. until February 2002.2 In March 2002, the Department filed a petition for termination of parental rights as to both parents. The petition alleged that termination was proper under section 39.806(l)(c), (l)(d)(l), (l)(d)(3), and (l)(f).

At the time of the trial, E.I.F. was almost eight months old. The Department had placed E.I.F. in the custody of the Father’s sister, who is seeking adoption. The Mother consented to the termination of her parental rights.

The Father testified that he had been incarcerated for the past year and two months. He was incarcerated for violating probation by failing to attend an appointment with his probation officer, failing to complete his community service hours, and failing to pay restitution on an aggravated battery or aggravated assault charge that occurred in 1998 or 1999. He also admitted he had been in prison in 1994 for aggravated assault or aggravated battery of a law enforcement officer.

The Father testified that he was willing to pay child support for E.I.F. and expressed an interest in becoming involved in E.I.F.’s life. The Father had previously contacted his sister to request photographs of E.I.F. He explained that with credit for gain time, he expects to be out in 2007.

The Department of Corrections submitted reports listing the Father’s tentative release date from prison as March or June 2010. The Father’s “85% Release Date” was listed as December 8, 2008.

The Father’s ex-wife, who is not the mother of E.I.F., testified that the Father’s drug use contributed to their divorce in 1991 or 1992 and that he did not deal well with the divorce. On one occasion the Father threatened suicide in front of the ex-wife and their two young children. On another occasion, the Father threatened to burn the house down and harm her or the children if any more child support was taken out of his paycheck. The ex-wife only received child support for approximately the first year and a half after their divorce. The Father had virtually no involvement with their children when he was not incarcerated. However, when he was incarcerated, the Father sent the children cards and called monthly to speak with the children. She testified that the Father is a good person but that his priorities are mixed up.

The Father testified that he received six months of psychiatric treatment at North-side Psychiatric Hospital after the suicide threat. In 1994 he voluntarily entered drug treatment in prison and he testified that he has not used drugs since. The record does not contain any evidence of suicidal tendencies since the incident in 1991 or 1992. In fact, the record does not contain any evidence of any violent acts committed by the Father towards or in front of his two older children since that incident. Regardless, the trial court found that the Father’s conduct towards his older children constituted clear and convincing evidence to support termination under section 39.806(l)(e), (l)(d)(3), and (l)(f).

Section 39.806(l)(c) provides for termination of parental rights when the Department proves by clear and convincing evidence that the parent “engaged in conduct toward ... other children that demonstrates that the continuing involvement of the parent or parents in the par[927]*927ent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services.” The trial court found that clear and convincing evidence supported termination of the Father’s parental rights to E.I.F. under this section based on the Father’s suicide threat, threats toward his other children, drug use, and his failure to maintain a relationship with his other children or pay child support.

While this evidence does show conduct towards the Father’s other children that-demonstrated that the Father’s continuing involvement would have been detrimental to those children in the early 1990s before his treatment, it does not support the trial court’s finding of clear and convincing evi-dencé that the Father’s continuing involvement with a child who was born almost ten years later to a different mother would be detrimental to that child and threaten the child’s life, safety, or well-being. See D.S. v. Dep’t of Children & Families, 842 So.2d 1071, 1072 (Fla. 4th DCA 2003) (holding that a court may not terminate parental rights based on a parent’s criminal history absent evidence linking the criminal acts to the child’s well-being); L.B. v. Dep’t of Children & Families, 835 So.2d 1189, 1194 (Fla. 1st DCA 2002) (holding that the trial court erred in terminating the mother’s parental rights under section 39.806(l)(c) based on her domestic violence against the father when she had received treatment for same, had been taking her medication, and the parties had separated).

Certainly if the Father was suicidal at present, E.I.F.’s safety or well-being might be threatened; however, the Father received psychological treatment after his suicide threat, and there is no evidence of any suicidal or violent acts of the Father in front of or toward any of his children for almost a decade. Likewise, the Father testified that he received drug treatment in 1994 and there is no evidence of drug use by the Father since. Finally, the Father’s failure to pay child support for or to maintain a relationship with his older children does not support the trial court’s finding of clear and convincing evidence of conduct that would “threaten[ ] the life, safety, well-being, or physical, mental, or emotional health of the child.”

For the same reasons that the Father’s conduct towards his older two children does not support the trial court’s finding of clear and convincing evidence “that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child,” it does not support the trial court’s finding of clear and convincing evidence “that continuing the parental relationship with the incarcerated parent would be harmful to the child” under section 39.806(l)(d)(3), or of “egregious conduct ... that threatens the. life, safety, or physical, mental, or emotional health of the child or the child’s sibling” under section 39.806(l)(f). Thus, the trial court erred in terminating the Father’s parental rights under section 39.806(l)(c), (l)(d)(3), and (l)(f).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

S.B. v. Department of Children & Families
132 So. 3d 1243 (District Court of Appeal of Florida, 2014)
J.W.B. v. Department of Children & Families
8 So. 3d 1191 (District Court of Appeal of Florida, 2009)
In Re SH
992 So. 2d 316 (District Court of Appeal of Florida, 2008)
S.H. v. Department of Children & Family Services
992 So. 2d 316 (District Court of Appeal of Florida, 2008)
K.S. v. Department of Children & Family Services
898 So. 2d 1194 (District Court of Appeal of Florida, 2005)
In Re NS
898 So. 2d 1194 (District Court of Appeal of Florida, 2005)
BC v. Dept. of Children and Families
887 So. 2d 1046 (Supreme Court of Florida, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
872 So. 2d 924, 2004 Fla. App. LEXIS 3077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-eif-v-department-of-children-family-services-fladistctapp-2004.