Supreme Court of Florida ____________
No. SC2023-0604 ____________
STATEWIDE GUARDIAN AD LITEM OFFICE, Petitioner,
vs.
C.C., et al., Respondents.
____________
No. SC2023-0605 ____________
DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner,
March 7, 2024
FRANCIS, J.
The Department of Children and Families (the Department)
and the Statewide Guardian ad Litem Office (GAL) seek review of
the Fifth District Court of Appeal’s decision in C.C. v. Department of Children & Families, 47 Fla. L. Weekly D2323 (Fla. 5th DCA Nov.
14, 2022), which reversed the trial court’s final order terminating
the father’s, C.C.’s, parental rights. 1
Because the Fifth District’s decision failed to properly apply
our precedent in S.M. v. Florida Department of Children & Families,
202 So. 3d 769 (Fla. 2016), we quash the decision below and
remand to the Sixth District to affirm the trial court’s final order
terminating C.C.’s parental rights to L.A. 2
I. BACKGROUND
L.A., the child at the center of these proceedings, is a six-year-
old boy who was sheltered by the Department shortly after his birth
in 2017,3 due to his mother’s continued physical abuse of his older
1. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
2. This case was originally heard by the Fifth District; however, after the opinion was released, the Department and GAL each filed a motion for rehearing, rehearing en banc, and certification. While those motions were pending, the case was transferred to the newly formed Sixth District.
3. L.A. was removed from the mother’s care due to her involvement with the Department. The mother’s parental rights to L.A. were terminated, along with the father’s; however, only the father’s case is currently before this Court.
-2- brother. He has lived with his current foster family for the past six
years.
At the time L.A. was sheltered, C.C. was living in North
Carolina and was facing charges of driving while impaired for which
he would be convicted. It marked C.C.’s eighteenth conviction in a
fifteen-year period.4 He would go on to secure two other such
charges. And even though he repeatedly completed inpatient drug
and alcohol treatment as part of his criminal cases, he did not
change his ways.5 C.C.’s latest conviction landed him in prison for
25-39 months, with a release date of September 2023. Of the past
six years (the course of the Department’s involvement), C.C. has
been incarcerated for three of those years.
One of C.C.’s more egregious crimes was first-degree arson
and assault with a dangerous weapon arising from a domestic
violence incident. Specifically, he stabbed his paramour and
4. C.C.’s convictions run the gamut: domestic violence, arson, driving while intoxicated (repeatedly), reckless driving to endanger (repeatedly), hit and run, felon in possession of a firearm, assault by pointing a weapon, and communicating threats.
5. Both the Department and C.C. allege that he no longer has substance abuse issues.
-3- mother of one of his children, injuring her arm, neck, back, and
hand; the injuries required stitches. He then poured gasoline on
the home and set it on fire, while his older son and another child
were inside.6 For these crimes, C.C. spent seven years in prison.
Although L.A. has always lived in Florida, C.C. resided in
North Carolina for the duration of the Department’s involvement.
He did, however, have some minimal involvement in L.A.’s life. For
instance, he visited L.A. three or four times per year in person, and
video-chatted with L.A. when he wasn’t incarcerated. However,
C.C.’s remote video visits with L.A. became more difficult for L.A.
when those visits resumed after C.C.’s release from incarceration in
early 2020. The longest C.C. spent in-person with L.A. at one time
was for four hours, and he did this on two occasions: once in 2019
and once in 2020. C.C. nevertheless provided some financial
support for L.A., both at the holidays and upon the caregiver’s
request.
When the Department first became involved with the family six
years ago, C.C. sought to obtain custody of L.A. in North Carolina,
6. C.C. denied that his older son was present.
-4- so an Interstate Compact on the Placement of Children home study
was completed in that state. The home study report concluded,
however—after listing his numerous convictions from 2002-2017—
that it would be nearly impossible for C.C. to obtain a positive home
study in North Carolina. As a result, C.C. prepared to move to
Florida in order to obtain custody of L.A. Though he reported he
had leased an apartment in Jacksonville, C.C. did not commit to
moving and ultimately went back to North Carolina because he
didn’t like Florida’s “atmosphere.” He was arrested and
incarcerated in North Carolina shortly thereafter for driving while
impaired.
During the Department’s initial involvement, it took numerous
actions directed at rehabilitating C.C. and fostering a relationship
between him and L.A. Beginning in March 2018—a year and a half
before the first petition for termination was filed—the Department
offered to provide C.C. a voluntary case plan and pay for all
associated services. C.C. agreed to the voluntary case plan, and the
trial court accepted it. 7 That case plan required C.C. to participate
7. Although the trial court stated in its final order (and the Fifth District recited) that C.C. had no case plan tasks and/or no
-5- in a psychological evaluation and follow recommendations,
complete individual counseling, attend parent coaching, obtain
stable employment and housing, and exercise supervised visitation
with L.A. Despite C.C. living in North Carolina for the duration of
the Department’s involvement, the Department referred C.C. to
various services and paid for all of the services he received.
Following his third conviction for driving while impaired, the
Department changed course from offering a voluntary case plan
with the goal of reunification, to petitioning for termination of C.C.’s
parental rights based on: (1) abandonment; (2) continuing
involvement threatening L.A.’s life, safety, well-being, or physical,
mental, or emotional health; (3) chronic substance abuse; and (4)
L.A.’s placement in out-of-home care for 12 of the last 22 months.
§ 39.806(1)(b), (c), (j), (e)3., Fla. Stat. 8
case plan was offered to him, this finding is not supported by competent, substantial evidence. The record clearly shows that the Department offered C.C. a voluntary case plan with associated tasks, C.C. agreed to the case plan, the trial court accepted the case plan, and the Department paid for all services associated with C.C.’s case plan tasks.
8. The Department filed its first petition for termination in October 2019, and the matter went to a final hearing in February 2020; however, due to COVID restrictions, the final hearing was not
-6- At a final hearing on the Department’s petition in the spring of
2022, the trial court entered a final order terminating C.C.’s
parental rights based on the Department having proven (1), (2), and
(4) above. Regarding (1), the court reasoned that C.C.’s repeated
incarceration, provision of token support, and failure to maintain a
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Supreme Court of Florida ____________
No. SC2023-0604 ____________
STATEWIDE GUARDIAN AD LITEM OFFICE, Petitioner,
vs.
C.C., et al., Respondents.
____________
No. SC2023-0605 ____________
DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner,
March 7, 2024
FRANCIS, J.
The Department of Children and Families (the Department)
and the Statewide Guardian ad Litem Office (GAL) seek review of
the Fifth District Court of Appeal’s decision in C.C. v. Department of Children & Families, 47 Fla. L. Weekly D2323 (Fla. 5th DCA Nov.
14, 2022), which reversed the trial court’s final order terminating
the father’s, C.C.’s, parental rights. 1
Because the Fifth District’s decision failed to properly apply
our precedent in S.M. v. Florida Department of Children & Families,
202 So. 3d 769 (Fla. 2016), we quash the decision below and
remand to the Sixth District to affirm the trial court’s final order
terminating C.C.’s parental rights to L.A. 2
I. BACKGROUND
L.A., the child at the center of these proceedings, is a six-year-
old boy who was sheltered by the Department shortly after his birth
in 2017,3 due to his mother’s continued physical abuse of his older
1. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
2. This case was originally heard by the Fifth District; however, after the opinion was released, the Department and GAL each filed a motion for rehearing, rehearing en banc, and certification. While those motions were pending, the case was transferred to the newly formed Sixth District.
3. L.A. was removed from the mother’s care due to her involvement with the Department. The mother’s parental rights to L.A. were terminated, along with the father’s; however, only the father’s case is currently before this Court.
-2- brother. He has lived with his current foster family for the past six
years.
At the time L.A. was sheltered, C.C. was living in North
Carolina and was facing charges of driving while impaired for which
he would be convicted. It marked C.C.’s eighteenth conviction in a
fifteen-year period.4 He would go on to secure two other such
charges. And even though he repeatedly completed inpatient drug
and alcohol treatment as part of his criminal cases, he did not
change his ways.5 C.C.’s latest conviction landed him in prison for
25-39 months, with a release date of September 2023. Of the past
six years (the course of the Department’s involvement), C.C. has
been incarcerated for three of those years.
One of C.C.’s more egregious crimes was first-degree arson
and assault with a dangerous weapon arising from a domestic
violence incident. Specifically, he stabbed his paramour and
4. C.C.’s convictions run the gamut: domestic violence, arson, driving while intoxicated (repeatedly), reckless driving to endanger (repeatedly), hit and run, felon in possession of a firearm, assault by pointing a weapon, and communicating threats.
5. Both the Department and C.C. allege that he no longer has substance abuse issues.
-3- mother of one of his children, injuring her arm, neck, back, and
hand; the injuries required stitches. He then poured gasoline on
the home and set it on fire, while his older son and another child
were inside.6 For these crimes, C.C. spent seven years in prison.
Although L.A. has always lived in Florida, C.C. resided in
North Carolina for the duration of the Department’s involvement.
He did, however, have some minimal involvement in L.A.’s life. For
instance, he visited L.A. three or four times per year in person, and
video-chatted with L.A. when he wasn’t incarcerated. However,
C.C.’s remote video visits with L.A. became more difficult for L.A.
when those visits resumed after C.C.’s release from incarceration in
early 2020. The longest C.C. spent in-person with L.A. at one time
was for four hours, and he did this on two occasions: once in 2019
and once in 2020. C.C. nevertheless provided some financial
support for L.A., both at the holidays and upon the caregiver’s
request.
When the Department first became involved with the family six
years ago, C.C. sought to obtain custody of L.A. in North Carolina,
6. C.C. denied that his older son was present.
-4- so an Interstate Compact on the Placement of Children home study
was completed in that state. The home study report concluded,
however—after listing his numerous convictions from 2002-2017—
that it would be nearly impossible for C.C. to obtain a positive home
study in North Carolina. As a result, C.C. prepared to move to
Florida in order to obtain custody of L.A. Though he reported he
had leased an apartment in Jacksonville, C.C. did not commit to
moving and ultimately went back to North Carolina because he
didn’t like Florida’s “atmosphere.” He was arrested and
incarcerated in North Carolina shortly thereafter for driving while
impaired.
During the Department’s initial involvement, it took numerous
actions directed at rehabilitating C.C. and fostering a relationship
between him and L.A. Beginning in March 2018—a year and a half
before the first petition for termination was filed—the Department
offered to provide C.C. a voluntary case plan and pay for all
associated services. C.C. agreed to the voluntary case plan, and the
trial court accepted it. 7 That case plan required C.C. to participate
7. Although the trial court stated in its final order (and the Fifth District recited) that C.C. had no case plan tasks and/or no
-5- in a psychological evaluation and follow recommendations,
complete individual counseling, attend parent coaching, obtain
stable employment and housing, and exercise supervised visitation
with L.A. Despite C.C. living in North Carolina for the duration of
the Department’s involvement, the Department referred C.C. to
various services and paid for all of the services he received.
Following his third conviction for driving while impaired, the
Department changed course from offering a voluntary case plan
with the goal of reunification, to petitioning for termination of C.C.’s
parental rights based on: (1) abandonment; (2) continuing
involvement threatening L.A.’s life, safety, well-being, or physical,
mental, or emotional health; (3) chronic substance abuse; and (4)
L.A.’s placement in out-of-home care for 12 of the last 22 months.
§ 39.806(1)(b), (c), (j), (e)3., Fla. Stat. 8
case plan was offered to him, this finding is not supported by competent, substantial evidence. The record clearly shows that the Department offered C.C. a voluntary case plan with associated tasks, C.C. agreed to the case plan, the trial court accepted the case plan, and the Department paid for all services associated with C.C.’s case plan tasks.
8. The Department filed its first petition for termination in October 2019, and the matter went to a final hearing in February 2020; however, due to COVID restrictions, the final hearing was not
-6- At a final hearing on the Department’s petition in the spring of
2022, the trial court entered a final order terminating C.C.’s
parental rights based on the Department having proven (1), (2), and
(4) above. Regarding (1), the court reasoned that C.C.’s repeated
incarceration, provision of token support, and failure to maintain a
substantial and positive relationship with L.A. constituted
abandonment. Regarding (2), the court determined that C.C.’s
repeated incarceration and unavailability caused a risk of harm to
L.A. despite C.C. receiving services on multiple occasions. And
regarding (4), the court found that L.A.’s placement in out-of-home
care met the 12-of-the-past-22-months benchmark because L.A.
was sheltered in December 2017, and hadn’t returned home by the
time the final order was entered in April 2022.
completed until November 2020. At that time, the trial court denied the Department’s petition. The Department and GAL sought rehearing, and the trial court sua sponte granted a new final hearing. Prior to the commencement of the second hearing, the Department filed the most recent amended petition alleging the grounds for termination set forth here.
-7- The trial court also found that it was in L.A.’s manifest best
interests to have C.C.’s rights terminated, and termination was the
least restrictive means of protecting L.A. from serious harm.
On appeal to the Fifth District, C.C. argued one issue: that the
trial court erred in finding that termination was the least restrictive
means of protecting L.A. In response, the Department and GAL
argued: (1) there was competent, substantial evidence supporting
the trial court’s least restrictive means determination; (2) section
39.806(2), Florida Statutes, relieved the Department of having to
make reasonable efforts where the trial court found statutory
grounds under section 39.806(1)(b) (abandonment) and (1)(c)
(continuing involvement); and (3) termination was the least
restrictive means pursuant to this Court’s decision in In Interest of
T.M., 641 So. 2d 410 (Fla. 1994).
The Fifth District, however, agreed with C.C. and concluded:
“Under the facts of this case, and in the absence of other reasonable
efforts at reunification, a case plan should have been provided to
[C.C.], with the opportunity to perform satisfactorily thereunder,
before DCF pursued severance of his parental rights.” C.C., 47 Fla.
L. Weekly at D2326.
-8- The court then held there was not competent, substantial
evidence that termination was the least restrictive means of
protecting the child. Id. In reaching its determination, however,
the Fifth District impermissibly reweighed the evidence and failed to
properly apply our decision in S.M. Accordingly, we quash the Fifth
District’s decision.
II. ANALYSIS
Before a trial court can terminate a parent’s rights to his or
her child, there are three elements the Department must prove.
First, the Department must prove by clear and convincing
evidence that at least one statutory ground in section 39.806(1),
Florida Statutes (2021), exists. See § 39.806(1), Fla. Stat. (2021); §
39.809(1), Fla. Stat. (2021) (“In a hearing on a petition for
termination of parental rights, the court shall consider the elements
required for termination. Each of these elements must be
established by clear and convincing evidence before the petition is
granted.”).
Second, the Department must show that termination is in the
child’s manifest best interests. See § 39.810, Fla. Stat. (2021) (“In a
-9- hearing on a petition for termination of parental rights, the court
shall consider the manifest best interests of the child.”).
And third, the Department must demonstrate that termination
is the least restrictive means of protecting the child from serious
harm. See Padgett v. Dep’t of Heath & Rehab. Servs., 577 So. 2d
565, 571 (Fla. 1991) (“[B]ecause parental rights constitute a
fundamental liberty interest, the state must establish in each case
that termination of those rights is the least restrictive means of
protecting the child from serious harm.”).
S.M.’s Guiding Principles for the Least Restrictive Means Prong
The least restrictive means element is a judicially implied
requirement that “is tied directly to the due process rights that
must be afforded to a parent before his or her parental rights are
terminated.” S.M., 202 So. 3d at 778. We have addressed the least
restrictive means prong numerous times since Padgett, and most
recently, in S.M.
In S.M., the Department became involved when the mother’s
youngest child tested positive for drugs at birth. Id. at 773. The
mother was given a voluntary case plan, which required her to
obtain stable housing, find a job, and participate in substance
- 10 - abuse treatment. Id. After the mother failed to complete these
tasks and was found living in unsafe housing, the Department
sought to terminate her parental rights, and the trial court entered
a final order to that effect. Id. at 774, 783-84. On appeal to the
Fourth District Court of Appeal, the mother argued that termination
was not the least restrictive means of protecting the children
because they shared a loving bond, and a family member would
allow the mother to regularly visit with the children. Id. at 774-75.
The Fourth District disagreed and affirmed the trial court’s order
terminating the mother’s rights.
In approving the Fourth District’s decision, this Court
discussed several guiding principles regarding the least restrictive
means prong, including the following.
First, we acknowledged that the least restrictive means prong
is tied to due process rights and focuses on what actions the State
took to preserve the parent-child bond, prior to filing the petition for
termination. Id. at 778. Second, we emphasized that the least
restrictive means prong is centered on protecting the fundamental
liberty interest in being a parent to a child, with all of the
responsibility and care that parenthood entails. Id. And third, we
- 11 - reiterated that the “the only limitation on this rule of parental
privilege is that as between the parent and the child[,] the ultimate
welfare of the child must be controlling.” Id. (quoting Padgett, 577
So. 2d at 570).
S.M.’s Application to this Case
Although the Fifth District’s opinion in C.C. correctly began by
discussing S.M. as to least restrictive means, the analysis went
sideways when the court started reweighing the evidence on appeal.
See Herzog v. Herzog, 346 So. 2d 56, 58 (Fla. 1977) (“Even if the
appellate court disagrees with the trial court and would have
reached a different conclusion had it been in the shoes of the trial
court, barring a lack of substantial evidentiary support for the
findings of the trial court, the judgment should be affirmed.”).
Instead, the Fifth District should have simply reviewed for
competent, substantial evidence and applied S.M., as discussed
below. See K.D. v. Dep’t of Child. & Fams., 242 So. 3d 522, 523
(Fla. 1st DCA 2018) (“Our review, confined to the least restrictive
means prong of the termination order, is highly deferential and
limited to whether competent, substantial evidence supports the
trial court’s judgment and whether we cannot say that no one could
- 12 - reasonably find such evidence to be clear and convincing. Our role
is not to reweigh the evidence heard by the trial court.” (internal
quotation marks omitted)).
As to the first principle from S.M.—the actions the State took
to preserve the parent-child bond—we consider the efforts the
Department made from the time it became involved until filing the
petition for termination. See S.M., 202 So. 3d at 778. This due
process protection does not require the Department to exhaust
every possible service that could remotely help a parent; rather, the
protection simply requires the Department to employ
“fundamentally fair procedures” prior to seeking termination.
Santosky v. Kramer, 455 U.S. 745, 753-54 (1982). There is
competent, substantial evidence supporting the conclusion that
fundamentally fair procedures were employed here.
Although the Fifth District believed the Department should
have provided more services to C.C. (including substance abuse
treatment and services intended to reduce recidivism), it is clear the
Department took numerous actions during the first year-and-a-half
of its involvement that were directed at helping C.C. obtain custody
- 13 - of L.A.—including offering C.C. a voluntary case plan with various
tasks and paying for all associated services.
Even if C.C. could have benefited from additional services, the
question remains whether there was a parent-child bond to re-
establish. See S.M., 202 So. 3d at 778-79 (“The least restrictive
means prong . . . simply requires that measures short of
termination should be utilized if such measures can permit the safe
re-establishment of the parent-child bond.” (internal quotation
marks omitted and emphasis added)). As found by the trial court
and contained in the record, the evidence is undisputed and shows
there is no such bond: L.A. was sheltered when he was days old
and has never lived with C.C.; during the six years of L.A.’s young
life, C.C. has never spent more than four hours at one time with
L.A.; C.C. only saw L.A. in-person a handful of times per year when
he was not incarcerated; and the GAL testified that C.C. and L.A. do
not share a parent-child bond.
Second, as to the fundamental liberty interest at stake—the
right to be a parent to the child—the parties do not dispute the
minimal involvement C.C. had in L.A.’s life. And the trial court
correctly concluded that C.C.’s calls and visits when he wasn’t
- 14 - incarcerated, coupled with his sporadic financial support, do not
demonstrate that he has the capacity to exercise his right to be a
parent to L.A.
To this end, we find it significant that despite C.C.’s clear
understanding that he would likely never pass a home study in
North Carolina, he failed to move to Florida—the only state where
he believed he could obtain custody of his son. By C.C.’s own
testimony, he did not move to Florida because he “didn’t like the
atmosphere” here. Although it is certainly his prerogative to live
where he wishes, C.C.’s decision to remain in North Carolina is
competent, substantial evidence supporting the trial court’s
conclusion that termination is the least restrictive means. See id.
at 780 (“If reunification is not possible because the father or mother
cannot or will not assume responsibility as a parent to the child, . .
. then termination is the least restrictive means of preventing
harm.” (quoting S.M. v. Fla. Dep’t of Child. & Fams., 190 So. 3d 125,
129 (Fla. 4th DCA 2015))).
Third, as to the principle that between the parent and the
child the ultimate welfare of the child must be controlling, L.A.’s
best interests must prevail over C.C.’s right to be a parent to him.
- 15 - See id. As the trial court found, C.C.’s unwillingness to remain out
of jail and prison, as well as the nature of his criminal convictions,
present substantial threats to L.A.’s welfare. During C.C.’s months-
and years-long absences, he did not have any contact with L.A. and
clearly did not have the ability to have custody of L.A. at that time.
Over the past six years—even while knowing that his parental rights
were at stake—C.C. continued to engage in illegal activity that
caused him to be unable to care for his son. Despite the
Department’s providing numerous services directed at helping C.C.
obtain custody of L.A., he has not been able to overcome the issues
that led to L.A.’s dependency; therefore, termination is the least
restrictive means of protecting the child from serious harm. See id.
III. CONCLUSION
We conclude that the Fifth District’s decision improperly
reweighed the evidence below and, thus, conflicts with our
precedent. It is clear from our review that there is competent,
substantial evidence in the record supporting the trial court’s
determination that termination is the least restrictive means of
protecting L.A. from serious harm, while affording C.C. due process
protections. We therefore disapprove and quash the Fifth District’s
- 16 - decision and remand to the Sixth District to affirm the trial court’s
order terminating C.C.’s parental rights to L.A.
It is so ordered.
MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, and GROSSHANS, JJ., concur. SASSO, J., recused.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal Direct Conflict of Decisions
Sixth District - Case No. 6D2023-1357
(Osceola County)
Dennis W. Moore, Executive Director, Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Laura J. Lee, Assistant Director of Appeals, Statewide Guardian ad Litem Office, Tallahassee, Florida,
for Petitioner Statewide Guardian ad Litem Office
Stephanie C. Zimmerman, Deputy Director and Statewide Director of Appeals, and Kelley Schaeffer, Appellate Counsel, Children’s Legal Services, Bradenton, Florida,
for Petitioner Department of Children and Families
Keith Peterson of the Law Offices of Peterson, P.A., Mulberry, Florida,
for Respondent C.C.
- 17 -