S.H. v. Department of Children & Family Services

District Court of Appeal of Florida

S.H. v. Department of Children & Family Services

992 So. 2d 316, 2008 Fla. App. LEXIS 14674

CourtDistrict Court of Appeal of Florida

DecidedSeptember 26, 2008

DocketNo. 2D08-834

StatusPublished

Cited by3 cases

This text of 992 So. 2d 316 (S.H. v. Department of Children & Family Services) 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.H. v. Department of Children & Family Services, 992 So. 2d 316, 2008 Fla. App. LEXIS 14674 (Fla. Ct. App. 2008).

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Opinion

LaROSE, Judge.

S.H. argues that the trial court erroneously terminated his parental rights to his four children based solely on his incarceration. We have jurisdiction. See Fla. R.App. P. 9.146. We agree with S.H. and reverse.

The Department of Children and Family Services (DCF) filed an amended petition to terminate S.H.’s parental rights pursuant to section 39.806(l)(d)(l), Florida Statutes (2007). In pertinent part, the statute provides for termination of parental rights when the parent is incarcerated and the period of expected incarceration constitutes a substantial portion of time before the child will attain the age of majority. Id. DCF alleged no other grounds for termination.

DCF must satisfy section 39.806(l)(d)(l) with clear and convincing evidence. B.C. v. Fla. Dep’t of Children & Families, 887 So.2d 1046, 1054-55 (Fla.2004). The trial court must measure the time of remaining incarceration and minority from the date the petition for termination is filed. Id. at 1055. Here, DCF filed the amended petition when the children, who included twins, were two, three, and four years old. When S.H. is released from prison, the children will be eight, nine, and ten years of age.

In B.C., the supreme court deemed four years of remaining incarceration an insubstantial portion of time before the child, then four years old, would attain majority. Id. at 1048, 1055. “[T]he statutory language ‘requires the court to evaluate whether the time for which a parent is expected to be incarcerated in the future constitutes a substantial portion of the time before the child reaches eighteen, not whether the time the parent has been incarcerated is a substantial portion of the child’s life to date.’ ” Id. at 1052 (quoting J.P.C. v. Dep’t of Children & Family Servs. (In re J.D.C.), 819 So.2d 264, 266 (Fla. 2d DCA 2002) (emphasis supplied)). We have held that a father’s remaining eight-year incarceration did not constitute clear and convincing evidence of incarceration for a “substantial portion of time” before the child, then eight months old, reached the age of majority. J.H. v. Dep’t [318]*318of Children & Family Servs. (In re E.I.F.), 872 So.2d 924, 928 (Fla. 2d DCA 2004). Similarly, S.H.’s remaining term of incarceration cannot be the basis for termination under section 39.806(l)(d)(l). Accordingly, we must reverse the trial court’s order terminating S.H.’s parental rights.

Reversed.

CASANUEVA and WALLACE, JJ., Concur.

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LaROSE, Judge.

S.H. argues that the trial court erroneously terminated his parental rights to his four children based solely on his incarceration. We have jurisdiction. See Fla. R.App. P. 9.146. We agree with S.H. and reverse.

The Department of Children and Family Services (DCF) filed an amended petition to terminate S.H.’s parental rights pursuant to section 39.806(l)(d)(l), Florida Statutes (2007). In pertinent part, the statute provides for termination of parental rights when the parent is incarcerated and the period of expected incarceration constitutes a substantial portion of time before the child will attain the age of majority. Id. DCF alleged no other grounds for termination.

DCF must satisfy section 39.806(l)(d)(l) with clear and convincing evidence. B.C. v. Fla. Dep’t of Children & Families, 887 So.2d 1046, 1054-55 (Fla.2004). The trial court must measure the time of remaining incarceration and minority from the date the petition for termination is filed. Id. at 1055. Here, DCF filed the amended petition when the children, who included twins, were two, three, and four years old. When S.H. is released from prison, the children will be eight, nine, and ten years of age.

In B.C., the supreme court deemed four years of remaining incarceration an insubstantial portion of time before the child, then four years old, would attain majority. Id. at 1048, 1055. “[T]he statutory language ‘requires the court to evaluate whether the time for which a parent is expected to be incarcerated in the future constitutes a substantial portion of the time before the child reaches eighteen, not whether the time the parent has been incarcerated is a substantial portion of the child’s life to date.’ ” Id. at 1052 (quoting J.P.C. v. Dep’t of Children & Family Servs. (In re J.D.C.), 819 So.2d 264, 266 (Fla. 2d DCA 2002) (emphasis supplied)). We have held that a father’s remaining eight-year incarceration did not constitute clear and convincing evidence of incarceration for a “substantial portion of time” before the child, then eight months old, reached the age of majority. J.H. v. Dep’t [318]*318of Children & Family Servs. (In re E.I.F.), 872 So.2d 924, 928 (Fla. 2d DCA 2004). Similarly, S.H.’s remaining term of incarceration cannot be the basis for termination under section 39.806(l)(d)(l). Accordingly, we must reverse the trial court’s order terminating S.H.’s parental rights.

Reversed.

CASANUEVA and WALLACE, JJ., Concur.

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Bluebook (online)

992 So. 2d 316, 2008 Fla. App. LEXIS 14674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sh-v-department-of-children-family-services-fladistctapp-2008.

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