IN THE INTEREST OF S.H., T.H., S.H., AND S.H., CHILDREN. S.H., APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES AND SALLY FULP, GUARDIAN AD LITEM, APPELLEES
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A trial court terminated S.H.'s parental rights to his four children based solely on his incarceration. The appellate court reversed, holding that S.H.'s remaining prison term does not constitute a substantial portion of time before the children reach age eighteen, thus failing to satisfy the statutory grounds for termination under Florida law.
S.H.'s remaining term of incarceration does not constitute clear and convincing evidence of incarceration for a 'substantial portion of time' before the children reach age eighteen. The statutory provision requires evaluation of future remaining incarceration time relative to the child's remaining minority, not the parent's past incarceration relative to the child's life to date. Accordingly, termination of parental rights was improper.
[1] Termination of parental rights based solely on incarceration requires clear and convincing evidence that the period of expected incarceration constitutes a substantial po…
[2] The time of remaining incarceration and minority must be measured from the date the petition for termination of parental rights is filed.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the 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.'”
Establishes the critical interpretive principle that remaining future incarceration, not past incarceration, must be evaluated against the child's remaining minority period
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Join FLexlaw to unlock all legal intelligenceS.H. was incarcerated, and the Department of Children and Family Services filed an amended petition to terminate his parental rights when the children…
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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 of 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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S.B. v. Dep't of Child. & Families, 132 So. 3d 1243 (Fla. 1st DCA 2014)…portion of his children’s minority. See B.C. v. Fla. Dep’t of Children & Families, 887 So. 2d 1046, 1054 (Fla.2004) (holding that a father’s incarceration which equaled 28.6 percent of the child’s remaining minority was not substantial); In re S.H., 992 So. 2d 316, 317-18 (Fla. 2d DCA 2008) (holding a father’s remaining six-year incarceration was not a substantial portion of the minority of children who were two, three, and four years old); In re E.I.F., 872 So. 2d 924, 928 (Fla. 2d DCA 2004) (holding a fathe…
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J.W.B. v. Dep't of Child. & Families, 8 So. 3d 1191 (Fla. 5th DCA 2009)…ches eighteen, not whether the time the parent has been incarcerated is a substantial portion of the child’s life to date.’ ” Id. at 1052 (iquoting J.D.C. v. Dep’t of Children & Family Servs., 819 So. 2d 264, 266 (Fla. 2d DCA 2002)). See In re S.H., 992 So. 2d 316 (Fla. 2d DCA 2008); J.H. v. Dep’t of Children & Family Servs., 872 So. 2d 924, 928 (Fla. 2d DCA 2004). [*1193] In the present case, the percentage is sixty percent. We conclude that sixty percent is a “substantial portion” of the time before M.J. re…
Authorities Cited
- B.C. v. Fla. Dep't OF Child. & Families, 887 So. 2d 1046 (Fla. 2004)
- In the Interest of J.D.C. v. Dep't of Child. & Fam. Servs., 819 So. 2d 264 (Fla. 2d DCA 2002)
- Lamontaque Gilyard v. State, 872 So. 2d 924 (Fla. 1st DCA 2004)