I.Z. v. B.H.

53 So. 3d 406, 2011 Fla. App. LEXIS 1904, 2011 WL 520547
CourtDistrict Court of Appeal of Florida
DecidedFebruary 16, 2011
DocketNo. 4D10-3372
StatusPublished
Cited by4 cases

This text of 53 So. 3d 406 (I.Z. v. B.H.) 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
I.Z. v. B.H., 53 So. 3d 406, 2011 Fla. App. LEXIS 1904, 2011 WL 520547 (Fla. Ct. App. 2011).

Opinion

POLEN, J.

Appellant, I.Z., the mother, appeals the trial court’s order granting Appellees, B.H. and R.M.’s petition to terminate I.Z.’s parental rights. We reverse.

The Department of Children and Families (DCF) reached its goal of permanency in this case in 2007 when it placed the child, S.F., in a permanent guardianship with B.H. and R.M. This court affirmed the trial court’s final order terminating DCF’s protective supervision and specifically noted that all parties agreed that the [407]*407parent(s)1 should be able to maintain some contact with the child. I.Z. v. Dep’t of Children & Families, 967 So.2d 425, 427 (Fla. 4th DCA 2007).

In July 2009, B.H. and R.M. filed a petition to terminate the mother’s parental rights alleging that the mother abandoned the child, the mother engaged in conduct toward the child which demonstrated that her continuing involvement in the child’s life was a threat to the child’s well-being, and the mother continued to abandon or neglect the child despite a case plan having been filed. For these reasons, B.H. and R.M. asserted that termination was legally warranted under subsections 39.806(l)(b), (c), and (e). After considering extensive testimony from numerous witnesses, the trial court found that termination was appropriate on all three grounds alleged and granted the petition. Much of the evidence had to do with events which occurred before permanency was established in 2007 and other evidence was conflicting.

The mother has a long history of mental illness and anger management problems. Because of these issues, the mother’s visits with the child take place at Jewish Adoption and Foster Care Options (JAFCO) facilities on a monthly, bi-weekly or weekly basis depending on the mother’s stability. The visits are supervised.

From December 2007 through December 2008, the mother visited the child as scheduled throughout the entire year. The social worker who supervised the visits testified that the mother and the child had “a very nice relationship,” that the mother was stable during that time and came prepared with activities, and that the two played and laughed together. Out of all of the monthly visits, the social worker identified three incidences of concern. In each of the incidences, the child wanted to play a particular game, and the mother either wanted to play a different game, or wanted the child to read a book. The mother explained that she was trying to do everything she could in the limited amount of time that she had to parent her child and teach the child how to read. Still, all of the visits throughout the year ended happily with the child and mother hugging, and saying that they loved one another. Throughout the year, the mother never lost control during a visit, and the child’s safety was never in question.

In February 2009, the mother was arrested for aggravated battery on her grandmother. During an argument, the mother kicked her grandmother in the shin resulting in a laceration. Following her arrest, the mother was incarcerated at the Broward County Jail for nine months. There were no supervised visits during the mother’s incarceration. The mother testified that she attempted to communicate with her daughter during her incarceration by mailing a birthday card to JAFCO. It was during this time that B.H. and R.M. filed the petition to terminate the mother’s parental rights. Upon the mother’s release, no visitation was permitted because the social worker had determined that both the child and the mother were anxious about the pending termination proceedings.

Though it was undisputed that the mother continues to struggle with her mental health issues, the evidence showed that the mother also continues to seek treatment and mental stability by means of therapy and medication. It is also clear from the record that there are safeguards in place to ensure that any potential impact on the child from the mother’s occasional instability is minimal.

[408]*408The child testified that she wants to see her mother, that she is not afraid of her mother, and that she has never been uncomfortable during a visit with her mother. The child also testified that she wants to be adopted, but believed that she would be able to see her mother even after the adoption, if her mother was well.2

This court has summarized the standard of review in a case involving the termination of parental rights:

A termination of parental rights proceeding involves a two-step process. First, the court must find by clear and convincing evidence that one of the grounds set forth in section 39.806, Florida Statutes (2002), has been proven. Second, the court must determine what outcome is in the manifest best interest of the children.

C.M. v. Dep’t of Children & Family Servs., 854 So.2d 777, 779-80 (Fla. 4th DCA 2003). Furthermore, the petitioning party must establish that termination of parental rights is the least restrictive means of protecting the child from harm. In re D.A., 846 So.2d 1250, 1251-52 (Fla. 2d DCA 2003).

The trial court first determined that termination of parental rights was appropriate under section 39.806(l)(b), Florida Statutes, which provides for the termination of parental rights when a parent has abandoned his or her child. Abandonment is defined as:

[A] situation in which the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the caregiver, while being able, makes no provision for the child’s support and has failed to establish or maintain a substantial and positive relationship with the child. For purposes of this subsection, “establish or maintain a substantial and positive relationship” includes, but is not limited to, frequent and regular contact with the child through frequent and regular visitation or frequent and regular communication to or with the child, and the exercise of parental rights and responsibilities. Marginal efforts and incidental or token visits or communications are not sufficient to establish or maintain a substantial and positive relationship with a child.

§ 39.01(1), Fla. Stat. (2010).

The trial court found that the mother was incarcerated from February 2009 until November 2009, and that during that period, there were no visits and “no testimony that the mother even thought to send a card or letter to [the child]” and that “the mother made no effort to maintain a bond with [the child] during this period of time.” Contrary to the court’s finding, the mother testified that she sent a birthday card to the child while she was incarcerated. The court also found that, upon the mother’s November 2009 release, there was a visit in December 2009, and that the therapist recommended visits stop at that time until therapeutically recommended again because of the mother’s inappropriate behavior during the visit. However, the record indicates that no visitation was permitted upon the mother’s release from jail because the termination proceedings were pending.

Appellees cite T.G. v. Department of Children & Families, 8 So.3d 1198 (Fla. 4th DCA 2009), in which this court affirmed the trial court’s termination of pa[409]*409rental rights based on the mother’s abandonment of her children. Id. at 1198. In T.G.,

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Bluebook (online)
53 So. 3d 406, 2011 Fla. App. LEXIS 1904, 2011 WL 520547, Counsel Stack Legal Research, https://law.counselstack.com/opinion/iz-v-bh-fladistctapp-2011.