DEPARTMENT OF CHILDREN AND FAMILIES AND GUARDIAN AD LITEM
v.
D.E. AND N.S., PARENTS OF D.E., A CHILD

Fla. 5th DCA | 2021-08-05
No. 21-0207
Edwards, J., Nardella, J., Wozniak, J., Toner, Stephen E., Jr., J.
Florida District Court of Appeal, Fifth District (2021)

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Holding

Termination of the mother's parental rights was required where the trial court found seven statutory grounds for termination by clear and convincing evidence, nine of eleven best-interest factors favored termination, and DCF made good-faith rehabilitation efforts; however, termination of the father's parental rights was properly denied where competent evidence supported findings that termination was neither in the child's manifest best interests nor the least restrictive means.

Headnotes

[1] In termination of parental rights cases, appellate courts review findings of fact for support by competent, substantial evidence but review de novo whether the trial cour…

[2] When a trial court finds statutory grounds for termination of parental rights by clear and convincing evidence and the child is in the custody of the other parent, Florid…

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Key Quotes

“Because parental rights are a fundamental liberty interest, the state must establish that termination of those rights is the least restrictive means of protecting the child from serious harm.”

Establishes the constitutional standard requiring DCF to prove termination is the least restrictive means available to protect the child.

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Facts & Procedural History

A child was born addicted to drugs used by the mother during pregnancy and was sheltered after leaving neonatal intensive care. Both parents had lengt…

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Topics
Competent Substantial Evidence

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Opinion of the Court
Wozniak

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

DEPARTMENT OF CHILDREN AND

FAMILIES AND GUARDIAN AD LITEM,

Appellants,

v. Case No. 5D21-207

D.E. AND N.S., PARENTS OF D.E., A CHILD,

Appellees.

________________________________/

Opinion filed August 5, 2021

Appeal from the Circuit Court for Hernando County, Stephen E. Toner, Jr., Judge.

Rachel Batten, Children’s Legal Services, Brooksville, for Appellant, Department of Children and Families.

Thomasina F. Moore and Sara Elizabeth Goldfarb, Statewide Guardian ad Litem, Tallahassee, for Guardian ad Litem.

J. Michael Blackstone, of J. Michael

Blackstone, P.A., Crystal River, for Appellee, D.E.

EDWARDS, J.

The Department of Children and Families (“DCF”) and the Guardian Ad Litem (“GAL”) appeal the trial court’s amended order denying DCF’s petition to terminate the parental rights of N.S. (“Mother”) and D.E. (“Father”) to their three-year-old son, D.E. (“child”). That order also provided for essentially immediate reunification with, and sole custody being awarded to, Father. We reverse and remand for entry of an order terminating Mother’s parental rights, as the trial court’s conclusions regarding the manifest best interests of the child and least restrictive means are not supported by competent, substantial evidence or applicable legal principles. We affirm the trial court’s order denying termination of Father’s parental rights. Standard of Review and Background

“In termination of parental rights (TPR) cases, the standard of review is highly deferential.” C.D. v. Fla. Dep’t of Child. & Fams., 164 So. 3d 40, 42 (Fla. 1st DCA 2015). We review findings of fact to determine if they are supported by competent, substantial evidence. J.P. v. Fla. Dep’t. of Child. & Fams., 183 So. 3d 1198, 1203 (Fla. 1st DCA 2016). “However, an appellate court is not required to defer to the trial court where there is no theory or

5 Despite finding seven grounds justifying termination of Mother’s parental rights, the trial court found that it was not in the child’s manifest best interests to terminate Mother’s rights. Further, it found that termination of Mother’s rights was not the least restrictive means to safeguard the child. The only reason articulated by the trial court for reaching these conclusions was that the child was going to be reunited with Father. Nothing to do with Mother was offered as justification for those conclusions. Section 39.810, Florida Statutes (2020), sets forth eleven factors to be considered by a trial court in determining whether a termination of parental rights is in the manifest best interests of the child. When used to analyze Mother, nine of the eleven factors2 demonstrate that it is in the child’s manifest best interests that Mother’s parental rights be terminated. Of the remaining two factors, one is inapplicable as the child is too young to state a preference for his future3 and the other presumes what was speculative at the time—that the child would be successfully placed with Father despite never before having so much as spent the night with him.4 While this analysis is not a matter of simple mathematics, we cannot find any support

5 DCF argues that the trial court crossed the line from being a neutral arbiter to being an advocate for Father in the way the court cross-examined DCF’s drug laboratory witnesses. Some of the court’s questions were benign attempts to clarify witnesses’ testimony. There are certainly grounds for DCF saying that some lines and modes of questioning from the court appeared to be more adversarial in nature and were what one might expect to come from counsel, rather than the court. While we do not condone such questioning that could be interpreted as adversarial, we do not find that the trial court’s questioning prejudiced the participants or deprived them of a fair trial.

AFFIRMED, in part; REVERSED, in part; and REMANDED, with instructions.

NARDELLA and WOZNIAK, JJ., concur.

Footnotes
1 Those statutory grounds were: Ground one—abandonment (§ 39.806(1)(b), Fla. Stat. (2020)); Ground two—Mother’s continuing involvement in the parent/child relationship threatens the child’s health, safety, and/or well-being irrespective of services (§ 39.806(1)(c)); Grounds three and five—Mother failed to substantially comply with the case plan within 12 months and failed to substantially comply with the case plan for at least 12 of the last 22 months (§ 39.806(1)(e)1. and 3.); Ground four—Mother materially breached the terms of the case plan (§ 39.806(1)(e)2.); Ground six—on three or more occasions Mother has had this child or her other children placed in out-of-home care (§ 39.806(1)(i)); and Ground seven— Mother has a history of extensive, abusive, and chronic use of controlled substances that renders her incapable of caring for the child and has refused or failed to complete available treatment for such use. (§ 39.806(1)(j)).
2 §§ 39.810(2), (3), (4), (5), (6), (7), (8), (9), and (11), Fla. Stat.
3 § 39.810(10), Fla. Stat.
4 § 39.810(1), Fla. Stat.
6 in the record or applicable law for the trial court’s conclusion that continuing rather than terminating Mother’s parental rights is in the child’s manifest best interests. “Because parental rights are a fundamental liberty interest, the state must establish that termination of those rights is the least restrictive means of protecting the child from serious harm.” A.A., 171 So. 3d at 177 (citing Padgett v. Dep’t of HRS, 577 So. 2d 565, 571 (Fla. 1991)). To satisfy the least restrictive means test, “DCF ‘must show that it has made a good faith effort to rehabilitate the parent and reunite the family, such as through a current performance agreement or other such plan for the present child.’” Id. (quoting Padgett, 577 So. 2d at 571). “The ‘least restrictive means’ test simply requires that measures short of termination should be utilized if such measures can permit the safe re-establishment of the parent-child bond.” Id. (quoting Dep’t of Child. & Fams. v. B.B., 824 So. 2d 1000, 1009 (Fla. 5th DCA 2002)). In the present case, the trial court noted that DCF provided many different services to Mother in an effort to assist her in establishing a parentchild bond. However, the trial court concluded that Mother had not complied with, and had repeatedly violated the terms of, her case plan with the result that she was unable, not to mention unwilling, to serve as a parent to this
7 child. Under those circumstances, the trial court erred in ruling that termination of Mother’s parental rights was not the least restrictive means. TPR as to Only One of Two Parents The appealed order awarded custody to Father and found that grounds for terminating Mother’s parental rights were established by clear and convincing evidence. Section 39.811(3) provides that in such circumstances—where the child is in the custody of one parent (here, Father), and the court has found that grounds for terminating the parental rights of the non-custodial parent (here, Mother), have been established by clear and convincing evidence—“the court shall enter an order terminating the rights of the parent for whom the grounds have been established and placing the child in the custody of the remaining parent, granting that parent sole parental responsibility for the child.” (emphasis added). Section 39.811(6)(e) permits the termination of one parent’s rights without terminating the other parent’s rights when the terminated parent meets the criteria, inter alia, of section 39.806(1)(c) or (j), which the trial court found applied to Mother. Accordingly, given the trial court’s undisputed findings of fact and its undisputed conclusions of law, described above, we find no theory or principle of law that supports the trial court’s disputed conclusion denying
8 termination of Mother’s parental rights as a single-parent termination. Accordingly, we reverse the trial court’s order as to Mother and remand for entry of an order terminating her parental rights as to this child. Findings of Fact and Conclusions of Law—Father DCF and the GAL disagree with many of the trial court’s findings of fact regarding Father. While the evidence was disputed in certain regards, there is competent, substantial evidence to support the trial court’s findings. In summary, the trial court found that Father initially had a serious drug problem and that several attempts at treating that problem were unsuccessful. Father repeatedly tested positive for illegal drugs. However, it was clear from the record that Father made diligent efforts to establish a parent-child relationship with this child and was successful in achieving that goal under the exceptional circumstances that included virtual visitation occasioned by the Covid-19 pandemic. Father remained employed; however, his financial contributions to help support the child were minimal at best. DCF and Father entered into a mediated agreement whereby Father would once again enter a drug treatment program and if he became freed of his drug addiction, the goal of reunification was going to become reality. Father entered and completed a faith-based treatment program whose director certified and testified that Father was no longer addicted. DCF
9 points out that the program did absolutely no drug testing or screening of the participants at any point. Thus, DCF argued that there was no objective, fact-based confirmation that this program had resolved Father’s drug addiction which was the original reason for sheltering the child. As Father neared the goal of reunification, he once again tested positive for drug use. However, at trial, Father presented an expert witness who cast doubt on the reliability of those positive drug screens. The trial court found the expert’s testimony credible, which led to a finding that the positive drug tests were not proof of Father’s continued drug use.5 Although the trial court found several grounds that would justify terminating Father’s parental rights under section 39.806(1), the conclusions that terminating Father’s rights was neither in the manifest best interest of the child nor the least restrictive means of safeguarding the child are supported by competent, substantial evidence and applicable law.
10 Accordingly, we affirm the trial court’s order denying DCF’s petition to terminate Father’s parental rights.

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