Third District Court of Appeal State of Florida
Opinion filed October 6, 2022. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-2445 Lower Tribunal No. 10-15798 ________________
S.H., The Mother, Appellant,
vs.
Department of Children and Families, et al., Appellees.
An appeal from the Circuit Court for Miami-Dade County, Rosy Aponte, Judge.
Thomas Butler, P.A., and Thomas J. Butler, for appellant.
Family First Firm, Beth Kathryn Roland (Orlando), Sara Elizabeth Goldfarb (Tallahassee), for appellee Guardian ad Litem, and Karla Perkins, for appellee Department of Children and Families.
Before SCALES, LINDSEY, and MILLER, JJ.
MILLER, J. In this appeal, S.H., the mother, challenges an amended final judgment
terminating her parental rights to X.W., her three-year-old child, on the
grounds of conduct threatening the life, safety, well-being, or health of the
child irrespective of services, pursuant to 39.806(1)(c), Florida Statutes
(2021), and failure to substantially comply with the case plan, pursuant to
section 39.806(1)(e)1., Florida Statutes. 1 Because these statutory bases are
not supported by competent, substantial evidence, we are constrained to
reverse.
BACKGROUND
In 2011, the mother lost her parental rights to her three oldest children
as the result of a domestic violence incident. In December of 2018, she gave
birth to the subject child. The following day, a Department of Children and
Families investigator visited the mother in the hospital. No concerns were
noted, but, nearly a month later, the mother was arrested for engaging in
domestic violence with the putative father. She was released on house
arrest to Lotus House, a sanctuary for homeless women and children.
1 The trial court attempted to amend the final judgment again during the pendency of appeal but lacked jurisdiction to do so.
2 In February 2019, the mother returned to Lotus House with the child
late at night. It was evident she had been drinking alcohol. The Department
was notified, and the child was sheltered.
Two months later, the mother consented to a determination of
dependency and admitted she had a blood alcohol level of 0.17 at the time
of the incident. The child was placed in foster care, and the mother was
offered a twelve-month case plan consisting of drug testing, parenting
classes, medication management, and therapy. She was permitted twice
weekly unsupervised visits with the child, and the stated goal of the case
plan was reunification.
From August to October 2019, the mother consistently tested negative
for drugs and alcohol. She also successfully completed her parenting
program. She continued to exercise visitation, often picking the child up from
daycare. In October, however, the mother observed the child crying and
soiled at the facility. After she voiced concerns to the staff, an argument
ensued, and the mother was barred from returning to the facility.
Between November 2019 and March 2020, the mother did not
consistently visit with the child. The foster mother canceled multiple visits
and requested that many be conducted via the Zoom platform rather than in
person, purportedly because of the behavior of other children residing in the
3 foster home. 2 The mother canceled other visits due to a lack of
transportation and logistical concerns.
In January 2020, the predecessor judge issued a report finding the
mother partially compliant with inpatient and outpatient treatment and
individual therapy and compliant with the remaining case plan tasks. The
judge specifically noted the mother was “very close to substantially
compliant” in all respects. Two months later, the mother successfully
completed her substance abuse treatment and court-ordered therapy. She
was then granted unsupervised overnight visitation with the child two nights
per week. This plan was abruptly modified as a result of the COVID-19
pandemic. The mother was still allowed unsupervised visits, but she could
only meet with the child during the day in public places.
In October 2020, the mother was arrested and jailed following an
altercation with another resident of Lotus House. The child was not present
during the incident, but the trial court amended the stated case plan goal to
adoption. The following month, citing the pandemic, a negative home study,
and the recent altercation, the guardian ad litem requested that the court
2 During the same time frame, the foster mother purportedly failed to obtain proper dental treatment for the child, resulting in numerous untreated cavities.
4 curtail any in-person visitation. The mode of visitation was again changed,
restricting the mother to virtual visits.3
In December 2020, the predecessor judge entered an updated review
order, finding the mother compliant with her visitation and most other case
plan tasks. Notwithstanding that order, the following month, the Department
filed a petition to terminate the mother’s parental rights, alleging three
grounds: (1) conduct threatening the life, safety, well-being, or health of the
child irrespective of services under section 39.806(1)(c), Florida Statutes; (2)
failure to substantially comply with the case plan for a period of twelve
months following the adjudication of dependency under section
39.806(1)(e)1., Florida Statutes; and (3) failure to substantially comply with
the case plan while the child had been in care for any twelve of the last
twenty-two months under section 39.806(1)(e)3., Florida Statutes.
The court convened a lengthy trial, at the conclusion of which it
rendered an amended final judgment terminating the mother’s parental
rights. The trial court found clear and convincing evidence of conduct
threatening the safety of the child irrespective of services and failure to
substantially comply with the case plan. The court, however, eschewed the
3 We express no opinion as to the propriety of virtual visitation, but observe the child was under two years old at that time.
5 additional ground of lack of substantial compliance while the child has been
in care for any twelve of the last twenty-two months, finding instead, “due to
the pandemic closures and issues in 2019 through 2021, [sic] [which] caused
many services to be interrupted or halted, the [c]ourt will not be considering
terminating parental rights on solely the issue of [the] [m]other having not
complied with the case plan within 12 months.” The instant appeal ensued.
STANDARD OF REVIEW
Our review of termination of parental rights cases is highly deferential.
N.L. v. Dep’t of Child. & Fam. Servs., 843 So. 2d 996, 999 (Fla. 1st DCA
2003). We examine the record to determine whether the trial court’s order
is supported by competent, substantial evidence. See N.B. v. Dep’t of Child.
& Fams., 289 So. 3d 29, 32 (Fla. 3d DCA 2019); J.G. v. Dep’t of Child. &
Fams., 22 So. 3d 774, 775 (Fla. 4th DCA 2009). A lower court ruling will be
affirmed “unless clearly erroneous or lacking in evidentiary support.” N.L.,
843 So. 2d at 999.
ANALYSIS
To terminate parental rights, the Department must first prove at least
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Third District Court of Appeal State of Florida
Opinion filed October 6, 2022. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-2445 Lower Tribunal No. 10-15798 ________________
S.H., The Mother, Appellant,
vs.
Department of Children and Families, et al., Appellees.
An appeal from the Circuit Court for Miami-Dade County, Rosy Aponte, Judge.
Thomas Butler, P.A., and Thomas J. Butler, for appellant.
Family First Firm, Beth Kathryn Roland (Orlando), Sara Elizabeth Goldfarb (Tallahassee), for appellee Guardian ad Litem, and Karla Perkins, for appellee Department of Children and Families.
Before SCALES, LINDSEY, and MILLER, JJ.
MILLER, J. In this appeal, S.H., the mother, challenges an amended final judgment
terminating her parental rights to X.W., her three-year-old child, on the
grounds of conduct threatening the life, safety, well-being, or health of the
child irrespective of services, pursuant to 39.806(1)(c), Florida Statutes
(2021), and failure to substantially comply with the case plan, pursuant to
section 39.806(1)(e)1., Florida Statutes. 1 Because these statutory bases are
not supported by competent, substantial evidence, we are constrained to
reverse.
BACKGROUND
In 2011, the mother lost her parental rights to her three oldest children
as the result of a domestic violence incident. In December of 2018, she gave
birth to the subject child. The following day, a Department of Children and
Families investigator visited the mother in the hospital. No concerns were
noted, but, nearly a month later, the mother was arrested for engaging in
domestic violence with the putative father. She was released on house
arrest to Lotus House, a sanctuary for homeless women and children.
1 The trial court attempted to amend the final judgment again during the pendency of appeal but lacked jurisdiction to do so.
2 In February 2019, the mother returned to Lotus House with the child
late at night. It was evident she had been drinking alcohol. The Department
was notified, and the child was sheltered.
Two months later, the mother consented to a determination of
dependency and admitted she had a blood alcohol level of 0.17 at the time
of the incident. The child was placed in foster care, and the mother was
offered a twelve-month case plan consisting of drug testing, parenting
classes, medication management, and therapy. She was permitted twice
weekly unsupervised visits with the child, and the stated goal of the case
plan was reunification.
From August to October 2019, the mother consistently tested negative
for drugs and alcohol. She also successfully completed her parenting
program. She continued to exercise visitation, often picking the child up from
daycare. In October, however, the mother observed the child crying and
soiled at the facility. After she voiced concerns to the staff, an argument
ensued, and the mother was barred from returning to the facility.
Between November 2019 and March 2020, the mother did not
consistently visit with the child. The foster mother canceled multiple visits
and requested that many be conducted via the Zoom platform rather than in
person, purportedly because of the behavior of other children residing in the
3 foster home. 2 The mother canceled other visits due to a lack of
transportation and logistical concerns.
In January 2020, the predecessor judge issued a report finding the
mother partially compliant with inpatient and outpatient treatment and
individual therapy and compliant with the remaining case plan tasks. The
judge specifically noted the mother was “very close to substantially
compliant” in all respects. Two months later, the mother successfully
completed her substance abuse treatment and court-ordered therapy. She
was then granted unsupervised overnight visitation with the child two nights
per week. This plan was abruptly modified as a result of the COVID-19
pandemic. The mother was still allowed unsupervised visits, but she could
only meet with the child during the day in public places.
In October 2020, the mother was arrested and jailed following an
altercation with another resident of Lotus House. The child was not present
during the incident, but the trial court amended the stated case plan goal to
adoption. The following month, citing the pandemic, a negative home study,
and the recent altercation, the guardian ad litem requested that the court
2 During the same time frame, the foster mother purportedly failed to obtain proper dental treatment for the child, resulting in numerous untreated cavities.
4 curtail any in-person visitation. The mode of visitation was again changed,
restricting the mother to virtual visits.3
In December 2020, the predecessor judge entered an updated review
order, finding the mother compliant with her visitation and most other case
plan tasks. Notwithstanding that order, the following month, the Department
filed a petition to terminate the mother’s parental rights, alleging three
grounds: (1) conduct threatening the life, safety, well-being, or health of the
child irrespective of services under section 39.806(1)(c), Florida Statutes; (2)
failure to substantially comply with the case plan for a period of twelve
months following the adjudication of dependency under section
39.806(1)(e)1., Florida Statutes; and (3) failure to substantially comply with
the case plan while the child had been in care for any twelve of the last
twenty-two months under section 39.806(1)(e)3., Florida Statutes.
The court convened a lengthy trial, at the conclusion of which it
rendered an amended final judgment terminating the mother’s parental
rights. The trial court found clear and convincing evidence of conduct
threatening the safety of the child irrespective of services and failure to
substantially comply with the case plan. The court, however, eschewed the
3 We express no opinion as to the propriety of virtual visitation, but observe the child was under two years old at that time.
5 additional ground of lack of substantial compliance while the child has been
in care for any twelve of the last twenty-two months, finding instead, “due to
the pandemic closures and issues in 2019 through 2021, [sic] [which] caused
many services to be interrupted or halted, the [c]ourt will not be considering
terminating parental rights on solely the issue of [the] [m]other having not
complied with the case plan within 12 months.” The instant appeal ensued.
STANDARD OF REVIEW
Our review of termination of parental rights cases is highly deferential.
N.L. v. Dep’t of Child. & Fam. Servs., 843 So. 2d 996, 999 (Fla. 1st DCA
2003). We examine the record to determine whether the trial court’s order
is supported by competent, substantial evidence. See N.B. v. Dep’t of Child.
& Fams., 289 So. 3d 29, 32 (Fla. 3d DCA 2019); J.G. v. Dep’t of Child. &
Fams., 22 So. 3d 774, 775 (Fla. 4th DCA 2009). A lower court ruling will be
affirmed “unless clearly erroneous or lacking in evidentiary support.” N.L.,
843 So. 2d at 999.
ANALYSIS
To terminate parental rights, the Department must first prove at least
one of the enumerated statutory grounds for termination by clear and
convincing evidence. See N.B., 289 So. 3d at 32. The trial court must then
consider whether termination is in the best interests of the child. Id. Finally,
6 the Department must also prove that termination is “the least restrictive
means of protecting the child from serious harm.” Statewide Guardian Ad
Litem Program v. A.A., 171 So. 3d 174, 177 (Fla. 5th DCA 2015).
Section 39.806(1)(c), Florida Statutes, imposes two requirements.
First, the trial court must find that the parent’s continued involvement
“threatens the life, safety, well-being, or physical, mental, or emotional health
of the child,” irrespective of services. § 39.806(1)(c), Fla. Stat. “In essence,
the trial court must find that any provision of services would be futile or that
the child would be threatened with harm despite any services provided to the
parent.” In re C.W.W., 788 So. 2d 1020, 1023 (Fla. 2d DCA 2001); see N.L.,
843 So. 2d at 1002. Second, the Department must show there is no
reasonable basis to believe a parent will improve. See B.A. v. Dep’t of Child.
& Fams., 297 So. 3d 586, 589 (Fla. 4th DCA 2020); J.P. v. Dep’t of Child. &
Fams., 183 So. 3d 1198, 1203 (Fla. 1st DCA 2016). Although this
requirement is typically established through expert testimony, “[w]here there
is no expert testimony on this issue, or where the expert testimony is based
on observations, interviews, or reports that are obsolete, reversal may be
appropriate because the trial court’s findings would be speculative.” Q.L. v.
Dep’t of Child. & Fams., 280 So. 3d 107, 115 (Fla. 4th DCA 2019).
7 Here, every witness, except for the case manager, who lacked any
expertise, testified that the mother had benefited and could potentially
continue to benefit from services.4 Indeed, the Department’s own expert, a
clinical psychologist, testified the mother made strides and any opinion as to
termination was inappropriate absent an updated evaluation.
The alternative statutory ground cited below, section 39.806(1)(e)1.,
Florida Statutes, provides a basis for terminating parental rights if the parent
fails “to substantially comply with the case plan for a period of 12 months
after an adjudication of the child as a dependent.” See also § 39.806(1)(e)3.,
Fla. Stat. (providing another ground for termination if “[t]he child has been in
care for any 12 of the last 22 months and the parents have not substantially
complied with the case plan so as to permit reunification”). In this context,
“substantial compliance” is attained when “the circumstances which caused
the creation of the case plan have been significantly remedied to the extent
that the well-being and safety of the child will not be endangered upon . . .
being returned to the child’s parent.” § 39.01(84), Fla. Stat. (2021). This
ground comes with a caveat. “[T]he failure to comply with a case plan may
not be used as a ground for termination of parental rights if the failure is due
4 The trial court expressly rejected the proposition the case manager was an expert.
8 to the parent’s lack of financial resources or the failure of the department to
make reasonable efforts to reunify the parent and child.” K.J. v. Dep’t of
Child. & Fam. Servs., 906 So. 2d 1183, 1184 (Fla. 4th DCA 2005).
In the instant case, citing section 39.806(1)(e)3., Florida Statutes, the
trial court found, “due to the pandemic closures and issues in 2019 through
2021, [sic] [which] caused many services to be interrupted or halted, the
[c]ourt will not be considering terminating parental rights on solely the issue
of [the] [m]other having not complied with the case plan within 12 months.”
Notwithstanding this finding, the court then included among the two grounds
for termination the mother’s failure to substantially comply with the case plan
for a period of twelve months following the adjudication of dependency. This
inherent contradiction cannot be reconciled.
Regardless, in finding the mother failed to substantially comply with the
case plan, the trial court pointed to the following factors: (1) the “[m]other
only visited with the child 70% of the time and only saw [the] child in person
twice when she had been granted unsupervised visits for over 12 months
(even though she has been unemployed since 2019 and had time to do so);”
(2) the mother engaged in domestic violence midway through her case plan;
(3) the mother failed to provide an address for her home study; and (4) the
mother continued to be unemployed.
9 As previously noted, however, the predecessor judge entered an order
a month before the termination trial finding the mother compliant with nearly
all case plan tasks. Among the areas deemed in compliance were the first
ground relied upon in termination, visitation, and the third, housing. Other
areas of compliance included parenting classes, treatment, random
urinalysis, individual therapy, medication management, and substance
abuse, mental health, and psychiatric evaluations. These inapposite findings
cannot be harmonized given the proximity in time to the final hearing and the
lack of reliance on intervening events.
Further, our survey of Florida decisional law yields no case in which a
termination of parental rights was upheld solely on the grounds a parent
failed to exercise all permissible visitation. Here, the terms of the visitation
changed multiple times, the foster mother contributed in part to the
cancellations, and the mother presented unrebutted testimony as to the
challenges inherent in conducting virtual visitation with a toddler, along with
her own economically precipitated transportation issues.
It is well-established that the failure to comply with a case plan for
financial reasons, alone, cannot serve as a basis for termination. See K.J.,
906 So. 2d at 1184. In the instant case, the mother was residing at a
homeless shelter, did not have access to a motor vehicle, and was
10 unemployed. Despite these challenges, the mother completed the required
modalities, and the testimony established she improved and remained
compliant. Under these circumstances, we conclude the record lacks
competent, substantial evidence to support the statutory grounds asserted
for termination.
Accordingly, we reverse the final judgment of termination under review
and remand this cause to the trial court for continuation of the child’s
dependency status, without prejudice to the Department reinstituting
termination proceedings, if appropriate, at such time that it is able to meet its
burden to present clear and convincing evidence of a statutory ground for
terminating parental rights, along with clear and convincing evidence that
terminating parental rights is the least restrictive means of protecting the
child from harm and in the best interests of the child. N.L., 843 So. 2d at
999.
Reversed and remanded.