A.D., JR., FATHER OF M.D., A CHILD, APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, APPELLEE
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A.D. appeals the termination of his parental rights to his child M.D. The Department of Children and Families conceded that the record did not support a finding of abandonment, and the appellate court found the trial court erred in finding clear and convincing evidence of abandonment and failure to substantially comply with the case plan.
The trial court erred in finding clear and convincing evidence of abandonment because A.D. remained in contact with the child and the Department failed to establish his ability to provide financial support. Additionally, A.D.'s completion of all but three classes of the batterers intervention program constituted substantial compliance with the case plan, and evidence of volatility, while potentially warranting against reunification, does not justify termination of parental rights.
[1] Abandonment requires a parent to have made no significant contribution to the child's care and maintenance or failed to establish or maintain a substantial and positive r…
[2] A parent's inability to provide financial support, if not established by the Department, may preclude a finding of abandonment.
Previewing 2 of 6 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“While A.D. has not provided any financial support for the child over the course of the child's life, the Department has not established his ability to provide such support. Moreover, A.D. has remained in contact with the child, who currently resides with A.D.'s sister in New York. Therefore, the trial court erred in finding clear and convincing evidence that A.D. abandoned the child.”
Establishes that the Department's failure to prove the father's financial ability and the father's maintained contact with the child precluded a finding of abandonment.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceA.D. is the father of M.D., a child who resides with A.D.'s sister in New York. A.D. has not provided financial support for the child over the child's…
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A.D. appeals the termination of his parental rights to his child, M.D.1 The Department of Children and Families (“the Department”) concedes that the record does not support a finding that A.D. abandoned the child. Abandonment, under section 39.01, Florida Statutes, is defined in pertinent part as follows:
(1) “Abandoned” or “abandonment” means a situation in which the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the caregiver, while being able, has made no significant contribution to the child’s care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both.
§ 39.01(1), Fla. Stat. (2015) (emphasis added).
While A.D. has not provided any financial support for the child over the course of the child’s life, the Department has not established his ability to provide such support. Moreover, A.D. has remained in contact with the child, who currently resides with A.D.’s sister in New York. Therefore, the trial court erred in finding clear and convincing evidence that A.D. abandoned the child.
In addition, the record in this case does not establish that A.D. failed to substantially comply with the case plan. Although the record in this case does not appear to contain a copy of an executed case plan,2 the parties seem to have agreed at trial that under the case plan, A.D. had only one task: complete a batterers intervention program.3 A.D. made virtually no *92effort to comply with the ease plan until the petition for termination of parental rights was filed. Thereafter, however, A.D. worked to complete a batterers intervention course and fell just short of finishing the program. The program lasted twenty-nine weeks; A.D. completed all but three classes, albeit with gaps in attendance.
The Department seems to concede that attendance at all but three classes constituted substantial performance. It argues, though, that A.D. remains volatile, and it points to evidence of verbal tiffs with his sister and the Guardian Ad Litem. While this evidence might warrant a determination that reunification would not be appropriate, it does not rise to the level of justifying termination of parental rights. Accordingly, we reverse and remand.
REVERSED and REMANDED.
EVANDER and WALLIS, JJ., concur.
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