WR v. Department of Children and Families

928 So. 2d 414, 2006 WL 1041134
CourtDistrict Court of Appeal of Florida
DecidedApril 21, 2006
Docket1D05-1486
StatusPublished
Cited by5 cases

This text of 928 So. 2d 414 (WR v. Department of Children and 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
WR v. Department of Children and Families, 928 So. 2d 414, 2006 WL 1041134 (Fla. Ct. App. 2006).

Opinion

928 So.2d 414 (2006)

W.R., mother of E.R., R.R. and A.R., children, Appellant/Cross-Appellee,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, Appellee/Cross-Appellant.

No. 1D05-1486.

District Court of Appeal of Florida, First District.

April 21, 2006.

*415 Joyce Sibson Dove, Esq., Tallahassee, for Appellant/Cross-Appellee.

Acelo I. Pedroso, Child Welfare Attorney, Tallahassee, for Appellee/Cross-Appellant.

LEWIS, J.

Appellant/cross-appellee, W.R., the natural mother of E.R., R.R., and A.R., seeks review of an order terminating her parental rights to E.R. and denying termination as to R.R. and A.R. She raises three issues on appeal, only two of which warrant discussion. The Department of Children and Families ("Department") raises two additional issues on cross-appeal, neither of which warrants discussion. Appellant argues that the trial court erred in terminating her parental rights to E.R. pursuant to section 39.806(1)(c), Florida Statutes (2004), because the Department failed to prove that her continuing interaction with E.R. would threaten his life, safety, well-being, or health and because it failed to prove that termination was the least restrictive means of protecting E.R. from serious harm. Because we agree with appellant as to both arguments, we reverse and remand for further proceedings.

In January 2003, the trial court granted a shelter petition filed by the Department, which alleged that the children had been abused, abandoned, or neglected or were in imminent danger of illness or injury as a result of abuse, abandonment, or neglect because the trailer home in which the family lived had no running water or heat, *416 there was barely enough food to last one day while appellant would not receive more food stamps for over a week, the family slept on the cold, damp floor, there were only three blankets for the family to share, the children were cold and hungry, and appellant had violated a previously instituted safety plan. The Department subsequently filed a petition for dependency as to all three children, stating that it had received an abuse report containing the above allegations, that voluntary protective services had been unsuccessfully placed in the home, and that appellant had a learning disability, was unable to feed A.R. properly, and was unemployed and without income. In an order dated January 6, 2004, the trial court adjudicated the children dependent pursuant to appellant's consent.

On July 16, 2004, the Department filed a Petition for Termination of Parental Rights and Permanent Commitment for Purposes of Subsequent Adoption as to all three children, alleging that termination was appropriate pursuant to section 39.806(1)(e), Florida Statutes, because appellant failed to substantially comply with her case plan, that termination was appropriate pursuant to section 39.806(1)(c), Florida Statutes, because despite the services offered to appellant by the Department, she did not have the capacity to parent the children or to appreciate the circumstances that brought them into the Department's care to decrease any prospective abuse or neglect, and that termination was in the manifest best interests of the children.

During the termination hearing, Dr. Marie Hume Gilford, a clinical psychologist who evaluated both appellant and E.R., testified that appellant had a full-scale IQ of sixty-seven and was mildly mentally retarded; because of her limited cognitive skills, low IQ, and overall life situation, appellant had a limited ability to parent her children. Dr. Gilford had diagnosed E.R., whom she described as having significant behavioral and emotional problems, with combined type attention deficit hyperactivity disorder, adjustment disorder with disturbance of conduct, probable sexual abuse of child victim, and borderline intellectual functioning. She did not believe that any normal parent could handle E.R.'s problems and, thus, had recommended that he be considered for hospitalization. Dr. Gilford had no information suggesting that appellant was sexually abusive and stated that Developmental Disability services could be helpful to a person with appellant's abilities and that she could learn parenting skills.

Jann Tucker-Pettway, the Guardian Ad Litem ("GAL") for all of the children, testified on direct examination that she did not think that appellant could meet the needs of E.R., that she was not aware of any suitable custody arrangement with a relative other than appellant, and that appellant did not have the ability to provide the children with proper food, clothing, supervision, or medical care. She further testified that E.R. was adoptable but needed to be in a two-parent home where he was the youngest or only child that could provide the level of care required for his issues. On cross-examination, she testified that E.R. was not adoptable unless a "very, very special family" was found, that E.R. wanted to continue visiting with appellant, and that appellant visited the children for an hour each week and loved them very much. Although E.R. was in a level-two foster home at the time of the hearing, he could be institutionalized permanently as he had begun making suicidal threats and had been Baker Acted.

Appellant testified that she loved her children and that she could take care of R.R. in her home because she had no *417 problem with her. However, she acknowledged that both E.R. and A.R. needed "stronger help than [she could] give [them]." She believed that she could take care of E.R. after he received additional treatment and got better if she could obtain additional financial assistance.

After the conclusion of closing arguments, the trial court orally pronounced that, as to E.R., there was clear and convincing evidence that termination was in his best interest and that the Department had shown that appellant was unable to parent him or ever assume custody of him again. It reasoned that E.R. had such overwhelming psychological, emotional, and behavioral problems that appellant could not overcome while attempting to raise two other children, that E.R. would never get the care he needed from appellant, and that he needed a special environment and a family with the resources to take care of him. The trial court also noted that it "would be afraid for [E.R.] to grow up in the same house with the two sisters." As to R.R. and A.R., the trial court stated that it did not feel that "we've tried everything we can with [appellant]" and, thus, that it would not terminate appellant's parental rights as to them. The trial court found that the Department had not done anything malicious but that appellant deserved another chance before her parental rights as to R.R. and A.R. were terminated and concluded that the Department had failed to prove that termination was in the best interests of those children.

It was not until after the Department's counsel advised the trial judge that his termination as to E.R. had to reflect a finding as to which statutory ground justified termination of appellant's rights as to E.R. that the trial court stated that the ground provided in section 39.806(1)(c) fit better than the case plan failure ground because appellant was incapable of taking care of E.R.'s needs. The trial court subsequently addressed the factors to be considered in determining whether termination was in E.R.'s best interest pursuant to section 39.810, Florida Statutes (2004). In considering the love, affection, and emotional ties between E.R.

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Cite This Page — Counsel Stack

Bluebook (online)
928 So. 2d 414, 2006 WL 1041134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wr-v-department-of-children-and-families-fladistctapp-2006.