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

82 So. 3d 1188, 2012 WL 881612, 2012 Fla. App. LEXIS 4213
CourtDistrict Court of Appeal of Florida
DecidedMarch 16, 2012
DocketNo. 2D11-2320
StatusPublished
Cited by9 cases

This text of 82 So. 3d 1188 (In the Interest of N.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 N.F. v. Department of Children & Family Services, 82 So. 3d 1188, 2012 WL 881612, 2012 Fla. App. LEXIS 4213 (Fla. Ct. App. 2012).

Opinion

NORTHCUTT, Judge.

On the petition of the Department of Children and Family Services, the circuit court terminated the parental rights of N.F., the mother of a three-year-old. However, at the final hearing the Department failed to prove any grounds for termination. Therefore, we reverse the termination of N.F.’s parental rights.

In September 2009, N.F. was involved in a physical altercation with her boyfriend and she was arrested and jailed. At the time of the arrest, N.F.’s young daughter was at the home of a babysitter. N.F. failed to alert the babysitter about her arrest or to arrange for the care of her child during her incarceration. The child’s [1190]*1190paternal grandparents learned of the situation several days later, and they took her into their home. After petitioning for and obtaining a shelter order, the Department approved the paternal grandparents as custodians of the child. N.F. consented to a dependency in October 2009.

The Department offered N.F. a case plan with a goal of reunification. By June 2010 she had completed most of her required tasks. In light of her progress, her case manager conducted a home study in preparation for reunifying her with her daughter. But N.F.’s residence was found to be unsuitable because her roommate had substance abuse problems and was involved in a dependency matter in another county. At about the same time, the paternal grandparents decided that they could no longer care for N.F.’s daughter. The Department placed the child with a foster family in a non-adoptive placement. In July 2010, a new case manager was assigned to the case. She intended to recommend that the child be reunified with her mother at a status hearing scheduled for September 1, 2010.

N.F. failed to attend that hearing. The case manager contacted her the next day and met with her on September 14. N.F. was remorseful and said that she had overlooked the hearing because of her work schedule. Then, on October 6, 2010, N.F. missed a scheduled visitation with her daughter. The case manager drove to N.F.’s residence and found her asleep. When questioned about the missed visit, N.F. replied “I overslept and I took my meds, what’s the big deal?” She had been prescribed a medication containing codeine, and she recounted that she had taken one of the pills for a bad toothache.

In an October 7, 2010, written status review, the case manager recommended reunifying the mother and child after N.F. completed two weekend visits with her daughter. But on the very day that the case manager made that recommendation, the circuit court convened a hearing on its own motion “to reconsider the permanency review.” Thereafter, the court entered an order reflecting that at the hearing the Department announced its decision to change the permanency goal from reunification with the child’s mother to adoption. The order stated:

[T]he Court finds the mother has an attitude that goes beyond irresponsible. She has a lackadaisical attitude. The child is 3-years old and the mother has disappointed the child. It cannot be good for the child to have an on-again/ off-again motherhood relationship with this mother.

The court suspended N.F.’s visitation and all contact with her daughter.

On October 11, 2010, the Department filed a petition to terminate N.F.’s parental rights. The petition asserted that N.F. had materially breached her case plan, § 39.806(l)(e), Fla. Stat. (2010); that she had abandoned the child, § 39.806(l)(b); and that she had engaged in egregious conduct threatening the child’s life or well-being, § 39.806(l)(f).

The final hearing on the petition was begun in January 2011 and completed in March 2011. In the interim, N.F. was again arrested for domestic violence against her boyfriend.

Ultimately, the circuit court entered an order terminating N.F.’s parental rights based solely on section 39.806(l)(e). The order contained findings of fact that, for purposes of our discussion, we have numbered one through three. They were:

[One.] This court finds that the State has proven by clear and convincing evidence that the mother, [N.F.], had failed to substantially comply with the provisions of her case plan for a period of [1191]*1191nine (9) months after an adjudication of dependency or placement in shelter care. The court has considered the evidence that the mother did, in fact, complete several classes included in her case plan (parenting, individual counseling, BIP [Batterers Intervention Program]). However, while the mother completed a substance abuse course, she continued to fail to appear for random, mandated screenings. The mother completed BIP and attended anger management classes, but thereafter exhibited angry and unstable language and behavior including a domestic battery arrest on the eve of her trial on the State’s termination of parental rights petition. The mother completed a parenting course but repeatedly demonstrated a lack of attachment or bonding to her child. The mother clearly has not learned from her case plan nor has she demonstrated change.
[Two.] That the mother ... deprived the child of, or allowed the child to be deprived of, necessary food, clothing, shelter, or medical treatment, or the mother ... allowed the child to live in an environment when such deprivation or environment caused the child’s physical, mental, or emotional health to be significantly impaired or in danger of being significantly impaired.
[Three.] That the child is at substantial risk of prospective neglect in that the mother, despite attending case plan courses, has not learned from them.

In our review, we are mindful that in order to terminate a parent’s rights to her child, the Department must prove the allegations of its petition by clear and convincing evidence. See J.C. v. Dep’t of Children & Family Servs., 6 So.3d 643, 648 (Fla. 2d DCA 2009) (and cases cited therein). The Florida Supreme Court has defined “clear and convincing evidence” as an “intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.” In re Davey, 645 So.2d 398, 404 (Fla.1994). When considering a termination petition, the circuit court must first decide whether the Department proved the asserted grounds for termination by clear and convincing evidence, and then it must determine whether the manifest best interests of the child would be served by termination, again under the same evidentiary standard. See § 39.810. Finally, the Department must establish that termination of parental rights is the least restrictive means of protecting the child from harm. J.C., 6 So.3d at 643; E.E.A. v. Dep’t of Children & Family Servs., 846 So.2d 1250, 1251-52 (Fla. 2d DCA 2003).

Our standard of review in parental rights termination cases is highly deferential. “ ‘A finding that evidence is clear and convincing enjoys a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in evidentiary support.’ ” R.C. v. Dep’t of Children & Family Servs., 33 So.3d 710, 714 (Fla. 2d DCA 2010) (quoting N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003)). Thus, we review the circuit court’s ruling for evidentiary support and legal correctness. D.P. v.

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Bluebook (online)
82 So. 3d 1188, 2012 WL 881612, 2012 Fla. App. LEXIS 4213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-nf-v-department-of-children-family-services-fladistctapp-2012.