J.B. v. Department of Children & Families

107 So. 3d 1196, 2013 WL 627238
CourtDistrict Court of Appeal of Florida
DecidedFebruary 21, 2013
DocketNos. 1D12-3881, 1D12-4261
StatusPublished
Cited by5 cases

This text of 107 So. 3d 1196 (J.B. v. 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
J.B. v. Department of Children & Families, 107 So. 3d 1196, 2013 WL 627238 (Fla. Ct. App. 2013).

Opinion

THOMAS, J.

In this consolidated appeal, the parents (Appellants) challenge the trial court’s order terminating their parental rights. Appellants’ parental rights were previously terminated for six other children between 2005 and 2009. When V.B., the child in question, was born, the Department of Children and Families (the Department) immediately removed him from Appellants. Appellants argue that the trial court erred in terminating their parental rights without competent, substantial evidence to constitute clear and convincing evidence that they pose a substantial risk of harm to V.B. Appellants argue further that termination of parental rights is not the least restrictive means of protecting V.B. from harm. For the reasons discussed below, we reverse and remand for further proceedings.

Facts and Procedural Background

In March 2012, the Department filed a shelter petition regarding V.B., Appellants’ three-day-old child. The child was sheltered from the hospital based upon the termination of Appellants’ parental rights of five children on December 5, 2008, and a sixth child on June 12, 2009. The termination of five of their children in 2008 was based on neglect, including medical neglect. The termination of their sixth child in June 2009 was an expedited termination, immediately from the hospital, based upon the prior neglect. Appellants had been involved with the Department from 2005 to 2009 in relation to the prior terminations.

The petition alleged there was probable cause of substantial risk of immediate harm to V.B. based upon Appellants’ history with the Department and the circumstances surrounding the prior terminations of their six other children. The Department did not offer Appellants a reunification case plan, but sought adoption of V.B. with the same parents who adopted Appellants’ six other children.

At the hearing on the termination of parental rights for V.B., the Department submitted evidence of the termination of parental rights in Appellants’ two prior cases for their previous six children, including the hearing transcripts. The Department sought termination based upon three grounds: First, pursuant to section 39.806(l)(i), Florida Statutes, addressing termination based upon prior involuntary termination of parental rights of other children; second, pursuant to section 39.806(l)(c), addressing termination based upon a continuing course of conduct; third, pursuant to section 39.806(1)(Z), addressing termination when there are at least three prior removals of a child when the removals were because of the acts of the [1199]*1199parents.1

A witness who served as Appellants’ “lead family care counselor” testified she met with Appellants about V.B. She was aware of the prior removal of Appellants’ children, as she worked for the Department when those terminations occurred. She had inquired into what had changed in Appellants’ lives from 2008 and 2009. The Father told her he was willing to be more cooperative, and the Mother said she would quit being stubborn.

The lead family counselor testified that Appellants visited with V.B. once a week and the visits went well, but Appellants did not call her between visits to check on V.B. Appellants did not ask for assistance with any type of services, and they were not offered services because they did not have a case plan. She saw nothing showing that Appellants were committed to making any changes, and in her view, Appellants did not have the ability to care for their child. The witness asserted that Appellants had previously been given three case plans, none of which were completed. She visited Appellants’ home twice; it was clean, a room was prepared for the baby, and it was adequate and appropriate. Appellants’ home included a computer, a TV, and furnishings. There were no indications that they did not have food. They had a home phone and Mother said she was attempting to find work from home doing telemarketing. Notably, the witness acknowledged that the Department was not going to give Appellants the opportunity to care for the child, even if Mother followed through on counseling, as the Department’s goal had always been the adoption of V.B.

The lead family counselor admitted that the Department had no contact with Appellants from 2009 until V.B.’s birth in 2012, and she had no idea what Appellants learned about parenting during that time. She believed Appellants’ prior parenting record was the problem that would prevent them caring for the child. She reiterated that V.B. was removed based upon Appellants’ past history. She testified that Appellants provided nothing to show that they had changed.

V.B.’s caregiver testified that she and her husband adopted VB.’s six other siblings and, at the time of the hearing, V.B. was in their custody. She testified that when the other six children came into their care, one child, J.B., was believed to have behavioral problems because he would not listen, but they discovered that he was 95% deaf in his right ear because tubes placed in his ears had been neglected. Subsequently, J.B. had another surgery and began receiving speech therapy. The caregiver acknowledged that she and her husband want to adopt V.B.

The Father testified that he had held the same job for more than two years and lived in an appropriate setting. He acknowledged that he had to ride a bicycle to work and had previously fallen behind in making rent payments. He earned approximately $1,200 per month as a cook, working just under 40 hours a week. He testified that Appellants tried to visit V.B., but missed some visits due to transportation problems. He acknowledged his prior failings as a parent to his other six children, and that he and the Mother had failed in their ease plans. He further testified that they had lost a child due to Sudden Infant Death Syndrome, which had caused him to suffer from depression. The medical examiner did not find Appel[1200]*1200lants responsible for the death of their child. The Father stated that the Department removed their last child, D.B., in 2009, and no services were offered at that time or in the present case. The Father further acknowledged that he and the Mother had moved far too often and that stable housing was necessary to help properly raise a child, but believed they had found a home within their budget. He also testified that he was determined to overcome his prior mistakes, he had stable employment, and he had learned from his mistakes.

The Mother testified that since her last child was removed in 2009, she had learned what is considered to be neglect. She testified that she was attempting to get employment with a telemarketing company doing customer service. While not working, she spent her time cleaning their home, looking for online jobs, and looking at obtaining her GED from home. She knew when she got pregnant with D.B. in 2009 that not enough time had passed from the terminations of their other five children in 2008 for them to actually learn and understand the mistakes they made with the other children.

The Guardian Ad Litem testified that she was concerned that Appellants were overextended on their rent and other items, but she described their current home as appropriate.

The trial court granted the expedited petition for involuntary termination of parental rights. The court determined that the Department established by clear and convincing evidence that termination of Appellants’ parental rights was appropriate pursuant to sections 39.806(l)(i) and 39.806(l)(c), Florida Statutes.

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Cite This Page — Counsel Stack

Bluebook (online)
107 So. 3d 1196, 2013 WL 627238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jb-v-department-of-children-families-fladistctapp-2013.