S.B. v. Department of Children & Families

132 So. 3d 1243, 2014 WL 825240, 2014 Fla. App. LEXIS 2954
CourtDistrict Court of Appeal of Florida
DecidedMarch 3, 2014
DocketNo. 1D13-5337
StatusPublished
Cited by3 cases

This text of 132 So. 3d 1243 (S.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
S.B. v. Department of Children & Families, 132 So. 3d 1243, 2014 WL 825240, 2014 Fla. App. LEXIS 2954 (Fla. Ct. App. 2014).

Opinion

BENTON, J.

The father of three daughters, S.B. contends that the Department of Children and Families (DCF) failed to adduce competent and substantial evidence, which a reasonable fact finder could find clear and convincing proof, that his continued relationship with his children would be harmful to them, within the meaning of section 39.806(l)(d)3., Fla. Stat. (2013). DCF pleaded no other ground for termination in its petition for termination of parental rights (TPR). We agree that DCF failed to meet its burden, and reverse with directions to dismiss the petition.

Prior to his incarceration, S.B. worked as a plumber. He supported his three daughters and their mother, their half-brother (to whom he had no biological connection), and his own mother, the children’s grandmother. Dr. Bloomfield testified for DCF that S.B. was the main provider for his family, and the girls remember his working “long hours.” DCF did not allege appellant was ever violent, or that he endangered the children in any way. DCF did not allege that he neglected his children, abandoned them, or ever failed to provide shelter or food for them while he lived with them. DCF presented no evidence of any failure to provide for the children’s developmental, cognitive, psychological, or physical needs, until he was imprisoned.

Convicted of driving under the influence of alcohol a fourth time, S.B. began his prison sentence in February of 2012. Three months later, his daughters (now three, six, and seven) were taken from their mother (whose parental rights were eventually terminated by default for her failure to appear at a hearing in these proceedings). Since DCF removed the children, they (and their eight-year-old half-brother) have been placed in separate foster homes, and, during the sixteen months they spent in foster care before the trial, had been moved several times.

On August 14, 2013, DCF petitioned for involuntary termination of parental rights pursuant to section 39.806(l)(d)3., alleging that a continued parental relationship with the father would be harmful to the children because his “extensive criminal history resulting in his incarceration ... has directly impacted the parent-child relationship with each of his children” and because he has failed to maintain a meaningful relationship with the children while incarcerated. The “extensive criminal history” consists entirely of driving offenses. S.B. was convicted of three previous DUIs, one in 2000, one in 2003, and one in 2004. Since the birth of his first child in 2006, however, he had not been convicted of driving under the influence until 2012, shortly after his mother died.

DCF alleges the children will suffer harm, unless their father’s parental rights are terminated, in that they will languish in the foster care system until their father’s release from prison, and thus be “denied permanency.” According to Dr. Bloomfield, the psychologist who testified for DCF, the two older children are in their formative years and ought to be developing bonds and “attaching out to the community, with teachers and the like, and developing a sense of who they are,” and it is important that they have as few disruptions as possible in the next few years. Both Dr. Bloomfield and the family service counselor testified that, if parental rights were terminated, the children were young and resilient enough to form new bonds [1245]*1245with parental substitutes.1 Dr. Bloomfield also testified that the children could form new bonds while maintaining their bonds with their father.

DCF presented evidence of the father’s relationship with his children, through a family counselor and Dr. Bloomfield, an expert who had never met S.B. or observed him interacting with his children. The evidence showed that he currently has a real relationship with the children and has been at pains to maintain it (although the youngest child has no memories of him because she was only one year old when he was sent to prison). While incarcerated, S.B. attended substance abuse and parenting classes and expects to have approximately ten certificates when he is released. According to DCF’s own evidence, S.B. had written his children fifty letters in a sixteen-month-period, not including birthday and holiday cards.

Dr. Bloomfield, the psychologist, testified to a “strong bond” between appellant and the oldest child. She reported that the oldest child said “it was better” when she lived with her father and talked about their visits to the park, and how S.B. let her play on his iPad; and added that S.B. was nice to her, and that she still considered her former home with him her “real home.” She said she was sad because she can no longer see her family. As for the second child, Dr. Bloomfield stated the bond between them was ebbing due to her fading memories of her father. But she said that both older girls “talked about how their mother and father took care of them together” and how their grandmother cooked for them. They enjoyed receiving letters and “wonderful birthday cards” from him. Although the children also remember their parents’ yelling at each other, and being spanked by their father, DCF does not contend that they suffered any harm as a result that would justify termination of parental rights.

The sole ground on which DCF sought to terminate S.B.’s parental rights is section 39.806(l)(d)3., Florida Statutes (2013), which provides:

(d) When the parent of a child is incarcerated and either:
3. The court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child and, for this reason, that termination of the parental rights of the incarcerated parent is in the best interest of the child. When determining harm, the court shall consider the following factors:
a. The age of the child.
b. The relationship between the child and the parent.
c. The nature of the parent’s current and past provision for the child’s developmental, cognitive, psychological, and physical needs.
d. The parent’s history of criminal behavior, which may include the frequency of incarceration and the unavailability of the parent to the child due to incarceration.
e. Any other factor the court deems relevant.

As the guardian ad litem explains in her brief, the current version of the statute, applicable in S.B.’s case, was the result of an amendment in 2012. Ch. 2012-178, § 15, at 25-26, Laws of Fla.2

DCF had the burden to prove the grounds for terminating S.B.’s parental [1246]*1246rights it alleged in its petition for termination of parental rights by clear and convincing evidence. § 39.809(1), Fla. Stat. (2013). We review the circuit court’s decision to terminate parental rights for competent and substantial evidence which a reasonable finder of fact could deem clear and convincing support for the necessary findings. See N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003).

S.B.’s eldest child was seven at the time of trial. Under the old statute, appellant’s four-year sentence (he is to be released in the summer of 2015), would not have been deemed a substantial portion of his children’s minority. See B.C. v. Fla. Dep’t of Children & Families,

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Cite This Page — Counsel Stack

Bluebook (online)
132 So. 3d 1243, 2014 WL 825240, 2014 Fla. App. LEXIS 2954, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sb-v-department-of-children-families-fladistctapp-2014.