L.J. v. DCF

• Court: District Court of Appeal of Florida
• Decided: June 12, 2017
• Docket: 5D17-1069
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

L.J. a/k/a M.L., FATHER OF A.J., A CHILD,

Appellant,

v. Case No. 5D17-1069

DEPARTMENT OF CHILDREN AND FAMILIES,

Appellee.

_______________________________________/

Opinion filed June 15, 2017

Appeal from the Circuit Court for Orange County, Daniel Dawson, Judge.

Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.

Kelley Schaeffer, Appellate Counsel, Department of Children & Families, Bradenton, for Appellee.

C. Andrew Roy, of Winderweedle, Haines, Ward & Woodman, P.A., Winter Park, for Guardian ad Litem.

PER CURIAM.

L.J., a.k.a. M.L., Father of A.J. ("Father"), appeals the trial court's final order

terminating his parental rights to A.J., a minor child. Father argues the trial court erred by

failing to include a finding that reunification posed a substantial risk of harm to A.J.

Finding that competent, substantial evidence supports termination of Father's parental rights, we affirm the trial court's order but remand for the trial court to enter additional

findings consistent with this opinion.

Immediately following A.J.'s birth, the Department of Children and Families (the

"Department") filed a shelter petition after both A.J. and his mother ("Mother") tested

positive for cocaine. The Department later petitioned to involuntarily terminate the rights

of both parents. After the Department located Father in jail, the trial court ordered a DNA

test, which established Father's paternity of A.J. The Department then filed an amended

petition for termination of parental rights on the basis that Father's rights to his two other

children were terminated in 2009 and 2014.1

At the subsequent trial, the trial court took judicial notice of official records from

Michigan showing that Father previously had his parental rights to one child terminated.

In the Michigan case, Father admitted that he also had his rights to another child

terminated in Tennessee. The Department presented extensive testimony establishing

that Father never saw A.J., did not provide financial support, had a history of substance

abuse, and was often incarcerated. The Department's witnesses further testified that

Father lacked the capacity to care for A.J., and that he failed to remedy the reasons for

which his rights to his other children were terminated.

The trial court entered a final judgment terminating Father's parental rights to A.J.

on the basis that he had rights to two other children terminated. The trial court's order

included findings as to each statutory factor, discussed A.J.'s manifest best interests, and

explained that termination was the least restrictive means of protecting A.J. from harm.

1 In the interim, Mother entered a voluntary surrender of her parental rights. 2 Father appealed the order, raising only the argument that the trial court improperly failed

to include a finding that reunification posed a substantial risk of harm to A.J.

"Where a trial court has found that there is clear and convincing evidence

supporting a termination of parental rights, such findings enjoy a presumption of

correctness and will not be overturned unless clearly erroneous and lacking evidentiary

support." L.F. v. Dep't of Child. & Fams., 888 So. 2d 147, 148 (Fla. 5th DCA 2004) (citing

C.C. v. Dep't of Child. & Fams., 886 So. 2d 244 (Fla. 5th DCA 2004)). "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." N.L. v. Dep't of Child. & Fam. Servs., 843 So. 2d 996, 999 (Fla. 1st DCA 2003)

(quoting In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995)).

Section 39.806(1)(i), Florida Statutes (2017), provides that a trial court may

terminate parental rights where "[t]he parental rights of the parent to a sibling of the child

have been involuntarily terminated." In Florida Department Of Children & Families v. F.L.,

880 So. 2d 602, 609 (Fla. 2004), the Florida Supreme Court explained that, to pass

constitutional muster, the Department must also establish "that reunification would be a

substantial risk to the child and that termination is the least restrictive way to protect the

child." The court then set forth several factors for trial courts to consider when determining

whether the parent's conduct poses a significant risk of harm to the child:

Specifically, if the parent's conduct that led to the involuntary termination involved egregious abuse or neglect of another child, this will tend to indicate a greater risk of harm to the current child. The amount of time that has passed since the prior involuntary termination will also be relevant. A very recent involuntary termination will tend to indicate a greater current risk. Finally, evidence of any change in circumstances since the prior involuntary termination will obviously be

3 significant to a determination of risk to a current child. While a parent's past conduct necessarily has some predictive value as to that parent's likely future conduct, positive life changes can overcome a negative history.

Id. In other words, the Department must prove "that the parent suffers from a condition

that makes probable the prospect of future abuse or neglect of a child and that the

condition was one which was likely to continue." R.K. v. Dep't of Child. & Fams., 898 So.

2d 998, 1000 (Fla. 5th DCA 2005) (citing Dep't of Child. & Fams. v. B.B., 824 So. 2d 1000

(Fla. 5th DCA 2002)).

We find that, although the evidence presented at the hearing supports termination

of Father's parental rights under section 39.806(1)(i), the trial court failed to include the

required finding that "reunification would be a substantial risk to the child." See F.L., 890

So. 2d at 609. We disagree with Father's assertion that an outright reversal and remand

for additional dependency proceedings is the correct disposition in this appeal. Rather,

we affirm the trial court's finding that the evidence warranted termination of Father's

parental rights but remand for the trial court to include findings concerning whether

reunification poses a substantial risk of harm to A.J. See E.I. v. Dep't of Child. & Fams.,

979 So. 2d 378, 379 (Fla. 4th DCA 2008) (affirming denial of motion for reunification but

remanding for entry of statutorily compliant order); P.J. v. Dep't of Child. & Fams., 783

So. 2d 1148, 1149 (Fla. 5th DCA 2001) (vacating termination order and remanding "with

instructions to enter a termination order which complies with the statute").

AFFIRMED in part; REVERSED in part; REMANDED with instructions.

ORFINGER, WALLIS and LAMBERT, JJ., concur.