J.C. v. K.K.

64 So. 3d 157, 2011 Fla. App. LEXIS 9619, 2011 WL 2462854
CourtDistrict Court of Appeal of Florida
DecidedJune 22, 2011
DocketNo. 4D11-6
StatusPublished
Cited by4 cases

This text of 64 So. 3d 157 (J.C. v. K.K.) 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.C. v. K.K., 64 So. 3d 157, 2011 Fla. App. LEXIS 9619, 2011 WL 2462854 (Fla. Ct. App. 2011).

Opinion

WARNER, J.

The Department of Children and Families, the Guardian ad Litem program, and the child all appeal an order of the trial court declining to terminate the rights of the father of the child. Without ever determining the manifest best interest of the child, the trial court determined that, although grounds for termination existed, termination was not the least restrictive means of eliminating harm to the child. Because the trial court failed to determine the manifest best interest, we reverse for further proceedings.

J.C., a male child, was born on December 30, 2008. The mother came to the attention of DCF in December 2008, when she tested positive for methadone while pregnant with J.C. Although J.C. tested negative for drugs at his birth, DCF filed a dependency petition after J.C.’s birth and requested that the parents complete a case plan. The court left the child with the mother, who was living with her parents, and ordered weekly visitation for the father. In January 2009, the father submitted to a drug screen, which was positive for marijuana.

In March 2009, DCF sheltered the child based on the mother’s ongoing substance abuse and history of non-compliance with DCF services. Likewise, DCF determined that it was not appropriate to place the child with the father, in light of his ongoing marijuana use and his previous history with DCF. At the shelter hearing, the court placed the child in licensed care and gave the father supervised visitation with the child.

At a mediation held in April 2009, the parties reached an agreement on the case plan tasks for the parents. In particular, the father agreed to complete the following case plan tasks: a) undergo individual and parental counseling; b) complete a substance abuse evaluation; c) complete 10 consecutive negative drug screens; d) participate in supervised visitation with the child; e) submit to a paternity test; f) demonstrate stable income; g) pay $262.50 in child support or provide in-kind services; h) refrain from any violations of law; i) maintain stable housing; and j) maintain contact with the DCF. The case plan and mediated settlement agreement further required the father to meet with the case manager at least once per month and to notify the DCF within 72 hours if he changed his phone number or address.

A few days after the mediation, the trial court adjudicated the child dependent based upon the father’s consent. The grounds for the adjudication of dependency included the father’s substance abuse issues, his previous history with DCF (which included having his rights terminated as to a different child), his failure to comply with previously offered services, and his failure to provide for J.C.’s care. The court approved the mediated case plan, which provided for a goal of reunification/adoption and set forth a goal date of December 4, 2009.

[159]*159Essentially, the father failed to complete any of the case plan tasks. And after visiting with the child a few times in April 2009, he disappeared. Although the DCF case managers attempted to find him, they never located him. He did not contact his case manager or his attorney for the next year.

DCF filed a petition to terminate both parents’ rights in November 2009. While the petition was pending, the father contacted DCF in April 2010 wanting to see his son. DCF refused to provide additional services to the father, since he had abandoned his child during the preceding year and failed to comply with the case plan. On his own, however, the father attended drug counseling and parenting classes, and he was allowed to begin visits with his son. At first the child did not interact with him and viewed him as a stranger, but the child later began relating to him, more like a playmate, according to the case manager.

After several continuances of the final hearing, to which DCF objected, the case finally went to trial in October 2010. The child’s foster parents are willing to adopt, but the father sought reunification with the child. At trial, the father attempted to place the blame on DCF for the lack of communication and his failure to complete his case plan. The father gave various explanations for his lack of contact with DCF and with his son. The trial court, however, found that the father’s explanations were not credible.

The social worker assigned to enable visitation between the father and child testified that the father and child interacted very well. The father acted appropriately with the child, and the child seemed to enjoy their time together. She observed that a bond was beginning to form between the two. However, a much greater bond existed between the foster mother and the child.

Because the child had some behavioral problems, he was being seen by a child therapist. She observed one visit between the father and son. In her opinion, the child and father were not bonded. The child’s primary attachment was to the foster mother. Removing this bond would harm the child, although it is not impossible to change primary attachment figures in a child’s life. However, harm to the child in the form of behavioral problems and inability to form good relationships in the future can occur. If required, a gradual process of assimilation between the new primary caretaker and the child would be optimal and would best reduce the harm to the child. In her opinion, however, it was not in the child’s best interest to change his placement.

DCF presented the evidence of the father’s complete failure to complete any of his case plan as well as his disappearance for an entire year of the child’s life. In his defense, the father presented evidence of his present attempts to complete the same tasks that were in his case plan. He is engaged to a woman with a child whom he helps parent. They live in a home owned by his fiancée’s mother and pay her rent. He is employed, although his fiancée earns the greater amount of money in the household. He detailed the efforts he has made to stop his drug addiction and to develop his parenting skills. And he provided pictures of his home and the room he has decorated for his child should he be returned.

After hearing all the evidence, the trial court found that statutory grounds for termination were proven in that the mother abandoned the child. It also found that the father abandoned the child between May 2009 and April 2010, and failed to substantially complete his case plan tasks [160]*160within nine months. The court further found that DCF made reasonable efforts to assist the father in completing the case plan. Notwithstanding the court’s findings regarding the father’s non-compliance, the court praised the father’s efforts subsequent to the case plan.

The court then made a manifest best interest finding but only as it related to the mother. The court considered the factors in section 39.810, Florida Statutes, and made the following findings, which we summarize as follows:

a) The only suitable permanent custody arrangement with a relative of the child is with the father. In addition the child has been in a preadoptive placement for over six months and has integrated into that family;
b) The mother does not have the ability and disposition to provide for the child’s food, clothing, and medical care, but the father does;
c) The mother does not have the capacity to care for the child’s safety and well-being, but the father does, and the child’s physical mental and emotional health would not be endangered upon his return to the father;

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Related

Guardian ad Litem Program ex rel. A.E. v. Department of Children & Families
207 So. 3d 1000 (District Court of Appeal of Florida, 2016)
B.K., The Father v. Department of Children And Families
166 So. 3d 866 (District Court of Appeal of Florida, 2015)
B. K., The Father v. Department of Children and Families
District Court of Appeal of Florida, 2015
J.E. v. Department of Children & Families
126 So. 3d 424 (District Court of Appeal of Florida, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
64 So. 3d 157, 2011 Fla. App. LEXIS 9619, 2011 WL 2462854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jc-v-kk-fladistctapp-2011.