LB v. Department of Children and Families

835 So. 2d 1189, 2002 Fla. App. LEXIS 19339, 2002 WL 31887728
CourtDistrict Court of Appeal of Florida
DecidedDecember 30, 2002
Docket1D02-2592
StatusPublished
Cited by36 cases

This text of 835 So. 2d 1189 (LB v. Department of Children and 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
LB v. Department of Children and Families, 835 So. 2d 1189, 2002 Fla. App. LEXIS 19339, 2002 WL 31887728 (Fla. Ct. App. 2002).

Opinion

835 So.2d 1189 (2002)

L.B., mother of A.M.S. and B.C.B., Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.

No. 1D02-2592.

District Court of Appeal of Florida, First District.

December 30, 2002.
Rehearing Denied January 30, 2003.

*1190 Patricia L. Parker, Esq., Jacksonville, for Appellant.

Michael Paul Eng, Assistant General Counsel, Jacksonville, for Appellee.

*1191 LEWIS, J.

Appellant, the natural mother of A.M.S. and B.C.B., challenges an order terminating her parental rights to her children. Appellant raises two arguments on appeal. Appellant argues that the trial court's finding that her continuing involvement with the children threatened their well-being or lives pursuant to section 39.806(1)(c), Florida Statutes (2001), was not supported by the evidence. We agree and hold that the trial court's finding was not supported by clear and convincing evidence. Appellant also contends that the Department of Children and Families ("Department") failed to establish that termination of her parental rights was the least restrictive means available to the trial court. Because we also agree with appellant as to this issue, we reverse and remand for further proceedings.

In November 2000, the Department filed Shelter Petitions on the children who are now ages four and two. The Department alleged that the children were victims of threatened harm as their parents had engaged in domestic violence and as appellant had attempted suicide on several occasions. Appellant had also violated the terms of the domestic violence injunction that the trial court had previously granted her husband, the children's natural father ("father"). Thereafter, the trial court ordered that both children be detained in shelter care. Subsequent to the children's detention, the Department filed a Petition for Dependency as to both children, alleging that appellant and the father committed willful acts that caused or were likely to cause the children's physical, mental, or emotional health to be significantly impaired. Appellant, who suffers from epilepsy and depression, later consented to dependency. The children were initially placed with their paternal aunt and uncle and were later placed with shelter parents.

In the initial and updated case plans, both having the goal of reunification, appellant was instructed to: (1) complete a parenting skills class with 100% attendance and provide the Department with a certificate of completion, (2) undergo a psychological evaluation and follow through with all recommendations made by the therapist, (3) undergo an updated psychiatric evaluation and follow through with all recommendations made by the therapist, (4) sign releases of information at all hospitals where she received psychiatric treatment allowing the Department to obtain copies of her records, (5) complete a drug/alcohol evaluation, following all recommendations for treatment, and submit to random drug screens at the Department's request, (6) complete a Hubbard House evaluation, (7) obtain and maintain stable employment for a period of six months prior to the return of the children, (8) obtain and maintain stable housing for a period of six months prior to the return of the children, (9) pay child support, (10) provide the names, dates of birth and social security numbers of anyone residing in the home or having extended contact with the children, (11) refrain from any other illegal activity, and (12) engage in supervised bi-weekly visitation with the children once the visitation issue with the injunction was clarified. The father's case plan was essentially identical to appellant's plan.

Thereafter, on November 23, 2001, appellant struck the father with her automobile, drove away, and was later arrested. The children, who were still in shelter custody, were not present during this incident. Appellant subsequently pled guilty to the lesser offense of leaving the scene of an accident and was placed on two years' probation.

On February 13, 2002, the Department filed a Petition for Termination of Parental *1192 Rights and Permanent Commitment as to both appellant and the father, alleging that both parents were guilty of severe continuing abuse or neglect of the two children, in that they engaged in conduct towards the children that demonstrated that the continuing involvement of the parents in the parent-child relationship threatened both the lives and well-being of the children regardless of the provision of services pursuant to section 39.806(1)(c). The Department also alleged that the children had continued to be neglected or abandoned for the previous twelve months or more. Regarding her case plan, the Department alleged that appellant failed to comply with the recommendations of her psychological evaluation, pay child support, and refrain from illegal activities by getting arrested for leaving the scene of an accident with injuries and for driving with a suspended license. Thus, according to the Department, termination of both parents' parental rights served the manifest best interests of the children.

During the termination hearing, which occurred on two separate days, Dr. Bloomfield, the father's psychologist, testified that he believed the children would be in danger with both parents because of the "emotional play" that occurred between them. Dr. Bloomfield described the parents' relationship as "literally toxic." Thus, he opined that a high risk of dangerousness existed for the children if they were returned to both parents.

Luanne Edwards, appellant's marriage and family therapist, testified that appellant had consistently been taking her medicine for epilepsy and depression, had attended her appointments, had recently moved out of the family home, and had enrolled herself in college. Edwards opined, however, that appellant had not progressed to the point that the children could be returned to her because, while appellant was not likely to physically harm the children, the children could be placed in harm's way by appellant's negative interaction with someone else. Edwards then testified that appellant could be allowed supervised visitation with her children because appellant could handle herself in such a situation. Edwards did not foresee a problem with such as long as appellant did not enter into a situation where conflict might arise with the father. On cross-examination, Edwards testified that she had noticed some improvement in appellant's case, in that appellant had reported that there had been times when she had seen the father, and rather than provoke a fight or an argument with him, she would instead leave his presence.

Jean Johnson, a family services counselor employed by the Department, testified regarding appellant's compliance with her case plan. According to Johnson, appellant had completed the parenting skills classes with perfect attendance and had consistently visited with the children. While appellant was still attending counseling sessions, she had completed her psychological evaluation and had signed releases at all hospitals where she had received psychiatric care in order that the Department could monitor her progress. Johnson could not definitively state as to whether appellant had completed an updated psychiatric evaluation. Yet, appellant had completed a drug and alcohol evaluation as well as a Hubbard House evaluation regarding domestic violence. Although appellant had not obtained stable employment at the time of the termination hearing, she did receive disability benefits and she had moved from the family home. While appellant had not paid child support either, she had purchased clothes for the children.

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Bluebook (online)
835 So. 2d 1189, 2002 Fla. App. LEXIS 19339, 2002 WL 31887728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lb-v-department-of-children-and-families-fladistctapp-2002.