Department of Children and Families and Statewide Guardian Ad Litem Program v. J.S., the Father and S.I., the Mother

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

DEPARTMENT OF CHILDREN AND FAMILIES and
STATEWIDE GUARDIAN AD LITEM PROGRAM,
Appellants,

v.

J.S., the Father, and S.I., the Mother,
Appellees.

No. 4D15-2272

[January 13, 2016]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Michael Heisey, Judge; L.T. Case No. 562011DP000024B.

Rosemarie Farrell, Orlando, for appellant Department of Children and
Families.

Laura E. Lawson, Sanford, for appellant Statewide Guardian Ad Litem.

T. Charles Shafer, Fort Pierce, for appellee J.S., the Father.

Ryan Thomas Truskoski, Orlando, for appellee S.I., the Mother.

GERBER, J.

The Department of Children and Families and the Statewide Guardian
Ad Litem Program appeal from the circuit court’s final judgment denying
the Department’s petition for termination of both parents’ parental rights.
Regarding the father, the appellants argue the court erred in two respects:
(1) finding that the father’s incarceration period does not constitute a
significant portion of the child’s minority pursuant to section
39.806(1)(d)1., Florida Statutes (2015); and (2) finding that the father’s
continued parental relationship with the child would not be contrary to
the child’s best interests pursuant to section 39.806(1)(d)3., Florida
Statutes (2015). Regarding the mother, the appellants argue the court
erred in denying the termination of her parental rights based on its denial
of the termination of the father’s parental rights.
 We agree with the appellants on the two arguments regarding the
termination of the father’s parental rights, and thus we reverse the denial
of that termination. In light of that disposition, we also reverse the denial
of the termination of the mother’s parental rights.

Our opinion begins by summarizing the case’s procedural history. We
then present our reasoning as to why the father’s parental rights should
be terminated pursuant to sections 39.806(1)(d)1. and 39.806(1)(d)3.

Procedural History

The child was born in March 2009. The father did not have custody of
the child for the next two years. In March 2011, when the child was two
years old, the child was sheltered from the mother. The child was placed
in the father’s temporary custody. One month later, in April 2011, both
parents consented to a dependency order.

In July 2011, the father violated the dependency order by taking the
child to North Carolina without notice to the Department or the court. The
court removed the child from the father’s custody and placed the child
with his maternal grandmother and half-sister in Broward County. The
father remained in North Carolina.

Just over one year later, in August 2012, the father was arrested in
North Carolina on four felony charges: robbery with a dangerous weapon,
assault with a deadly weapon with intent to kill and inflict serious injury,
and two counts of kidnapping. The charges arose from an incident where
the father robbed two victims at gunpoint, shot one of the victims, and
stole their car. The father was convicted on those charges and sentenced
to prison in North Carolina with an anticipated release in August 2019.
By that time, the child will be ten years old.

The father also has a criminal history in Florida. In 1989, he was
sentenced to fifteen years in prison for attempted first degree murder,
armed burglary of a dwelling, and shooting into an occupied dwelling.

The Department filed its termination of parental rights petition, seeking
to terminate both the mother’s and the father’s parental rights. The
mother failed to appear at the advisory hearing, resulting in a consent by
default on the ground of abandonment. The Department pursued its
petition against the father.

At the adjudicatory hearing, the father appeared by telephone. During
the Department’s case-in-chief, the court heard testimony from the child’s

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maternal grandmother, the Department’s case manager, and the guardian
ad litem.

The grandmother testified that the child is thriving with his half-sister
in the grandmother’s home. The grandmother adopted the child’s half-
sister, and she wants to adopt the child as well. According to the
grandmother, the father’s only contact with the child has been one letter
sent via the case manager six months before the adjudicatory hearing. The
father has not sent the child any cards, gifts, food or clothing. The child
receives only the father’s $183 monthly Social Security benefits.

The dependency case manager testified that she visits the child about
every three weeks. The child is very affectionate towards his grandmother.
They have formed a loving, parent-child relationship. According to the
case manager: “[The child] often just runs up to her and hugs her and sits
on her lap and tells her he loves her. He calls her mom. They play
together. They seem to be very close.” The child never has asked about
the father in the case manager’s presence.

The case manager was required to contact the parents, if possible, on
a monthly basis. She last spoke with the father six months before the
adjudicatory hearing. During that conversation, the father indicated that,
upon his release from prison, he planned to stay in North Carolina.

After that conversation, the case manager attempted to call the father
three or four times, but did not get through. The case manager testified:
“He was moved to a different facility and they’ve made it known to me that
they won’t allow him to speak to me.” She had not tried to communicate
with him in writing.

The case manager could not remember if she talked to the father about
the full case plan, but she remembered talking to him about a parenting
class which he completed. The father’s other tasks were to: maintain
monthly contact with the case manager; provide the case manager with
any change of address or phone number; and provide financial support for
the child. According to the case manager, the father never provided any
change of address or phone number, and never provided financial support.
The case manager opined that the father had not substantially complied
with his case plan.

The case manager recommended that the court terminate both parents’
rights as to the child. The case manager conceded that, to her knowledge,
the only incident where the father directly harmed the child occurred when
the father left the state with the child without notifying the Department or

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the court. However, according to the case manager, based on her training
and risk assessment regarding child safety, and her knowledge of this
case, she did not believe the child would be safe if the court returned the
child to the father’s care.

After the case manager testified, the father, who was appearing
telephonically from prison and had not offered any testimony, stated he
had “nothing else to say” and ended the call.

The hearing then resumed with the guardian ad litem’s testimony. The
guardian ad litem testified she visited the child monthly for four years.
She described the child’s relationship with the grandmother as “a very
comfortable, loving relationship,” and as a “parental” and “bonded
interaction.” The child also has a very close relationship with his half-
sister. The child never has asked for his father or mother. The guardian
opined that it would be detrimental to the child to remove him from the
grandmother’s care.

Both the Department and the guardian argued that, after four years of
dependency, the child was entitled to permanency, and that it would be in
the child’s best interests to terminate both parents’ rights and allow the
child to be adopted by his grandmother and remain with his half-sister.
The Department noted that during the four-month period when the father
had custody, he acted with wanton disregard for the child’s safety and
welfare when he violated a court order by absconding with the child to
another state without disclosing the child’s whereabouts. The Department
added that since the child’s removal from his father’s care in 2011, he had
not seen or spoken to his father; the father had not provided any financial
or emotional support to him; he does not know his father; and he has no
relationship with the father. The Department also noted the father would
be incarcerated for a significant portion of the child’s minority, as the child
would be ten years old when the father is scheduled to be released in 2019.

The father’s counsel argued that, despite the father’s incarceration, no
evidence existed that he had neglected or harmed the child, or would be a
danger to the child. The father’s counsel noted that the father wrote a
letter to the child but received no response; his communication ability is
limited due to his incarceration; and the child receives the father’s monthly
social security benefit.

At the end of the hearing, the circuit court orally announced it was
denying the petition for termination of parental rights. The court found:
the Department did not prove by clear and convincing evidence that the
father breached his case plan; the father completed the case plan’s

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primary task of a parenting class; the other “secondary” tasks were not
fully explained to the father; and the father’s incarceration was not a willful
violation of his other case plan tasks because his current prison facility
“made it almost impossible for the case manager to have contact with him.
So, likewise, it would be impossible for him to have contact with her.”

Regarding section 39.806(1)(d)1., which concerns whether the parent’s
incarceration constitutes a significant portion of the child’s minority, the
court found:

Based on the calculations that we can do from the evidence
that was ascertained at trial, this child will be somewhere
[between] ten to twelve [years old] when [the] father [is]
released. Although it is a very close call, the Court does not
find clear and convincing evidence . . . that’s a significant
portion of this child’s minority. He’ll still have seven-and-a-
half more years or so until he reaches the age of majority after
his father is released.

Regarding section 39.806(1)(d)3., which concerns whether the child’s
continued relationship with an incarcerated parent would be contrary to
the child’s best interests, the court found:

[T]he only contact that the child could have with his father
while incarcerated would be telephonic contact and that’s not
even guaranteed, depending on what the particular rules of
whatever facility he is being housed in. This child is currently
six years of age. Although the current charges and the prior
record are disturbing and of a violent felony nature, there’s
been no evidence that, by virtue of the charges themselves,
that the current charges or the criminal history would cause
any harm to this child.

The court also found the Department did not prove by clear and convincing
evidence that the father engaged in conduct towards the child which
demonstrated his continued involvement with the child would threaten the
child’s “life, safety, well-being or physical or mental, emotional health,”
irrespective of provisions of services.

The court later entered a written order on the petition. The court found:

[Subsection] (1)(d)[1.] considers whether the incarceration of
a parent constitutes a significant portion of the child’s
minority. The father was arrested on August 2, 2012, and his

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 expected release date is August 2019. At the time of his
arrest, the child was 4 years old.1 Once released, the father
would have spent approximately 7 years of the child’s minority
incarcerated. The Court does not find clear and convincing
evidence that approximately 7 years constitutes a significant
portion of the child’s minority. The father was a part of the
child’s life until his most recent incarceration. The child was
even placed with the father after the child was sheltered from
the mother.

As to [subsection] (1)(d)[3.], whether or not the continued
relationship with the incarcerated parent would be contrary
to the best interests of the child[, t]he most likely contact the
child will have with the father while incarcerated would be
telephonic or written contact. The child is currently 6 years
of age, and although the current charges and the prior
criminal record are disturbing and of a violent felony nature,
there has been no evidence presented that continued contact
with the father would cause any harm to this child.

Regarding the mother, the court found the Department proved by clear
and convincing evidence that she abandoned the child pursuant to section
39.806(1)(b), Florida Statutes (2015), and that she did not comply with her
case plan within twelve months and materially breached her case plan
pursuant to sections 39.806(1)(e)1. and 2., Florida Statutes (2015).
However, the court denied the termination of the mother’s parental rights
because the court found insufficient evidence existed to support a single-
parent termination under sections 39.811(6)(e) and 39.806(1)(i), Florida
Statutes (2015).

The Department filed a motion for rehearing, which the guardian
supported. The motion argued the Department proved by clear and
convincing evidence that the court should have terminated the father’s
parental rights under sections 39.806(1)(d)1. and 39.306(1)(d)3.

The court set a rehearing on the motion. At the rehearing, the
Department emphasized that the father’s incarceration affects the child’s
need for permanency, even though the child currently was placed with a
relative:

This is the only home that [the child] has ever known. He’s
been in this placement with his sister. His sister has already

1 In fact, the child (born in March 2009) was 3 years old.

6
 been adopted . . . . [I]f we allow [the child] to sit in limbo for
four years, he will live with that uncertainty that he may not
be staying in this home, that [the father] may come back one
day, this person that he doesn’t really know and has no
relationship, and take him away. And so I would argue . . .
that it’s not a permanent placement, because he will never be
guaranteed to remain in this home, unless he is adopted.

The court denied the motion.

This appeal followed. Regarding the father, the appellants argue that
the circuit court erred in two respects: (1) finding that the father’s
incarceration period does not constitute a significant portion of the child’s
minority under section 39.806(1)(d)1.; and (2) finding that the father’s
continued parental relationship with the child would not be contrary to
the child’s best interests under section 39.806(1)(d)3. Regarding the
mother, the appellants argue the court erred in denying the termination of
her parental rights based on its denial of the termination of the father’s
parental rights.

We agree with the appellants’ arguments, as explained in the two
sections below.

1. The circuit court erred in finding that the father’s
incarceration period does not constitute a significant portion of
the child’s minority under section 39.806(1)(d)1.

Section 39.806(1)(d)1. provides, in pertinent part, that grounds for the
termination of parental rights may be established:

(d) When the parent of a child is incarcerated and . . .

1. The period of time for which the parent is expected to be
incarcerated will constitute a significant portion of the child’s
minority. When determining whether the period of time is
significant, the court shall consider the child’s age and the
child’s need for a permanent and stable home. The period of
time begins on the date that the parent enters into
incarceration[.]

§ 39.806(1)(d)1., Fla. Stat. (2015) (emphasis added).

As we recently explained in D.S. v. Department of Children & Families,
164 So. 3d 29 (Fla. 4th DCA 2015):

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 The prior version of this statute permitted termination of
parental rights when a parent was incarcerated for a period
constituting “a substantial portion of the period of time before
the child will attain the age of 18 years.” § 39.806(1)(d)1., Fla.
Stat. (2011). In B.C. v. Florida Department of Children and
Families, 887 So. 2d 1046 (Fla. 2004), the supreme court
interpreted this to mean the time of incarceration remaining
when the petition for termination was filed, not the entire
length of incarceration. But the court also noted that
termination also must be in the manifest best interest of the
child and the least restrictive means of protecting the child
from harm. The court concluded that “termination cannot
rest exclusively on the length of incarceration. The actual
effect of incarceration on the parent-child relationship must
also be considered in light of the additional statutory and
constitutional requirements.” Id. at 1054.

The amended statute appears to incorporate the concepts
of B.C. that incarceration must be more than a quantitative
analysis. Thus, the court must look both at the length of the
incarceration as well as its effect on the child’s need for
permanency. In other words, the statute requires both a
quantitative and qualitative dimension to the inquiry. In
addition, however, the state must still prove that termination
is in the manifest best interest of the child and the least
restrictive means of protecting the child from harm.

Id. at 34 (emphasis added; footnote omitted).

Here, while the circuit court made findings regarding the child’s age
(the quantitative inquiry), it did not make findings regarding “the child’s
need for a permanent and stable home” (the qualitative inquiry) as the
statute mandates. The failure to make statutorily-mandated findings in
termination of parental rights proceedings is reversible error. Cf. L.M. v.
Dep’t of Children & Families, 20 So. 3d 408, 409-10 (Fla. 4th DCA 2009)
(reversing and remanding for trial court to consider and address all six
factors of section 39.621(10), Florida Statutes, which “mandates that [the]
six factors ‘be considered and addressed in the findings of fact of the order
on the motion [by a parent for reunification].’”).

Furthermore, competent substantial evidence does not exist to support
the circuit court’s finding that the period of time for which the father is
expected to be incarcerated will not constitute a significant portion of the

8
child’s minority. The record does not reflect, as the court found, that the
father was “part of the child’s life until his most recent incarceration.”
Rather, the Department’s evidence established that the father had custody
of the child for only four months when the child was two years old, during
which time the father absconded with the child. Also, no evidence exists
that the father tried to communicate with the child except for one letter
which the father sent to the child six months before the adjudicatory
hearing.

More importantly, the Department proved by clear and convincing
evidence that the length of the father’s incarceration would negatively
affect the child’s need for permanency. As the Department argued, the
only home which the child has ever known is with his grandmother and
half-sister, whom the grandmother already has adopted. The failure to
terminate the father’s parental rights would cause the child to sit in limbo
for the next four years, during which the child may realize that he may not
be staying in his home if the father, with whom he has no relationship,
comes back and takes him away. Terminating the father’s parental rights
allows the child to be adopted by his grandmother and have permanency.

Thus, the Department proved by clear and convincing evidence that the
father’s incarceration was for a significant portion of the child’s minority
and negatively affected the child’s need for permanency. For these same
reasons, termination was both in the child’s manifest best interest and the
least restrictive means to prevent harm to the child. Cf. B.K. v. Dep’t of
Children & Families, 166 So. 3d 866, 876-77 (Fla. 4th DCA 2015) (affirming
the termination of the father’s parental rights where the incarcerated
father had not seen his child for six years and spoke to the child only once,
the child did not know who his father was and would be faced with
continued foster care if termination were denied, and no parent-child
relationship existed to reestablish).

The father attempts to liken his case to D.S. However, D.S. does not
support the father’s position. In D.S., the father had three children who
were sheltered. 164 So. 3d at 31. Two of the three children (D.S., Jr., and
K.S.) were placed with their paternal aunt, and the middle child, P.S., was
placed in foster care. Id. This court affirmed the termination as to the
child in foster care, stating:

As to P.S., the state proved by clear and convincing
evidence that the child is thriving in his foster family’s care
and does not wish to see his father. The father has not been
able to maintain much contact with P.S. Thus, the father’s
incarceration has been significant in that P.S., at a young age,

9
 has become bonded with the foster family to the exclusion of
[the father]. The foster parents wish to adopt P.S. To deprive
him of this continuing relationship with his foster parents
would prevent him from achieving a permanent and stable
home. Thus, the court’s conclusion that the state proved a
ground for termination is supported by competent substantial
evidence. Moreover, for these same reasons, we conclude that
termination was both in the manifest best interest and least
restrictive means to prevent harm to P.S.

Id. at 34-35. As for the two children who lived with the paternal aunt, this
court found that the state had not proven subsection (1)(d)1. was a ground
for termination:

The children reside in a stable home with [the father’s]
sister, their aunt. They are not in the custody of the
Department or in foster care but in the care of a relative.
Thus, to leave them in this placement would not allow them
to languish in foster care. [The father] has maintained as
close a relationship as his incarceration has allowed him to
maintain with the children, and D.S., Jr., in particular. While
the children are bonded to the aunt and uncle, they still know
[who] their father [is] and have regular interaction with him,
including regular phone calls, letters, and visits. When [the
father] is released from prison, D.S., Jr. will be eleven and K.S.
will be six. Because they are with relatives, they will still be
in contact with their present caregivers even when [the father]
is reunited with the children.

Id. at 35. This court noted “the supportive role that [the father] ha[d]
continued to play in the lives of D.S., Jr. and K.S.” Id. at 36. The children
were “happy and well-adjusted and enjoy[ed] interacting with their father.”
Id. In short, there was no evidence that awaiting reunification with their
father would cause those two children any harm. See id.

Here, in contrast, no relationship exists between the father and the
child, and the record reflects almost no effort from the father to be a part
of his son’s life. Instead, the child here may be compared to the child in
foster care in D.S. Like that child, the child here is thriving in his current
placement, his father has not maintained contact with him, he has become
bonded with his caregiver at a young age to the exclusion of the father, his
caregiver wants to adopt him, and to deprive him of this continuing
relationship with his caregiver and his half-sister, whom his caregiver has
already adopted, would prevent him from achieving a permanent and

10
stable home. Thus, the state proved grounds for termination under
section 39.806(1)(d)1., and termination was both in the manifest best
interest and the least restrictive means to prevent harm to the child.

2. The circuit court erred in finding that the incarcerated
father’s continued parental relationship with the child would
not be contrary to the child’s best interests under section
39.806(1)(d)3.

Section 39.806(1)(d)3. provides, in pertinent part, that grounds for the
termination of parental rights may be established:

(d) When the parent of a child is incarcerated and . . . :

....

3. The court determines by clear and convincing evidence
that continuing the parental relationship with the
incarcerated parent would be harmful to the child and, for this
reason . . . termination of the parental rights of the
incarcerated parent is in the best interest of the child. When
determining harm, the court shall consider the following
factors:

a. The age of the child.

b. The relationship between the child and the parent.

c. The nature of the parent’s current and past provision for
the child’s developmental, cognitive, psychological, and
physical needs.

d. The parent’s history of criminal behavior, which may
include the frequency of incarceration and the unavailability
of the parent to the child due to incarceration.

e. Any other factor the court deems relevant.

§ 39.806(1)(d)3., Fla. Stat. (2015) (emphasis added).

Here, the Department proved by clear and convincing evidence that the
statutorily-mandated factors favored termination of the father’s parental
rights. The circuit court, however, apparently looked past that evidence
and did not address the statutorily-mandated factors in four respects.

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 First, the court did not address the relationship between the child and
the father under subsection (1)(d)3.b. The Department proved by clear
and convincing evidence that the father and the child have no relationship.

Second, the court did not address the father’s current and past
provision for the child’s developmental, cognitive, psychological and
physical needs under subsection (1)(d)3.c. The Department proved by
clear and convincing evidence that the father did not provide for the child’s
needs in any way except for the involuntary redistribution of the father’s
Social Security benefits. If anything, the father negatively affected the
child’s needs by absconding with the child out of state for four months.

Third, regarding the father’s history of criminal behavior under
subsection (1)(d)3.d., the court merely noted that the father’s commission
of armed burglaries and felony assault with a firearm resulting in injury is
“disturbing.” The court did not address the fact that this was the father’s
second conviction for armed violent offenses or how the resulting
incarceration caused his prolonged unavailability to parent.

Fourth, while the court mentioned the child’s age under subsection
(1)(d)3.a., the court did not address the child’s age when considering the
harm flowing from the father’s prolonged unavailability to parent.

As stated above, the failure to make these statutorily-mandated
findings in termination of parental rights proceedings is reversible error.
L.M., 20 So. 3d at 409-10. More importantly, however, the Department
proved by clear and convincing evidence that, by applying the statutorily-
mandated factors, continuing the parental relationship with the
incarcerated father would be harmful to the child and, for this reason,
termination of the father’s parental rights is in the child’s best interests.

Conclusion

Based on the foregoing, we reverse the denial of the termination of the
father’s parental rights. In light of that disposition, we also reverse the
denial of the termination of the mother’s parental rights. We remand for
the circuit court to enter a final judgment: (1) terminating the father’s
parental rights as to the child pursuant to sections 39.806(1)(d)1. and
39.806(1)(d)3., Florida Statutes (2015); and (2) terminating the mother’s
parental rights as to the child pursuant to sections 39.806(1)(b) and
39.806(1)(e)1. and 2., Florida Statutes (2015).

Reversed and remanded for entry of termination of parental rights.

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GROSS and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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