J. P., mother of T. P. v. Florida Department of Children and Families

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA

J.P., mother of T.P., a minor child, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 1D15-3023

FLORIDA DEPARTMENT OF
CHILDREN AND FAMILIES,

Appellee.

_____________________________/

Opinion filed January 15, 2016.

An appeal from the Circuit Court for Santa Rosa County.
Marci L. Goodman, Judge.

Crystal McBee Frusciante, Sunrise, for Appellant.

Dwight O. Slater, Children's Legal Services, Department of Children and Families,
Tallahassee, for Appellee.

BILBREY, J.

The mother J.P. appeals the judgment of involuntary termination of parental

rights as to her daughter T.P. Using the “highly deferential” standard of review

which we apply to termination of parental rights cases, we affirm. See C.D. v. Fla.

Dep't of Children & Families, 164 So. 3d 40, 42 (Fla. 1st DCA 2015).
 Facts

This case started as a dependency without shelter after the child T.P. was

hospitalized twice in August 2012 for nephrotic syndrome, a potentially fatal

medical condition.1 Nephrotic syndrome means that the kidneys do not function

properly and leak protein into the body causing the retention of fluid. A child

suffering from the syndrome is more susceptible to infection. Untreated the

syndrome has a 30 to 40 percent mortality rate. Dr. Edward Kohaut, the child’s

pediatric nephrologist, testified that Albustix® strips are necessary to test the

protein levels in the urine in a child with nephrotic syndrome to determine if the

child is relapsing and in need of medical treatment. The Albustix® strips cost

approximately a dollar a day according to Dr. Kohaut. He also testified that

although they are not covered by Medicaid, parents need to make sure the

Albustix® strips are provided even if the parent has to cut back on something. Dr.

Kohaut also testified that a proper diet is very important for children with the

syndrome, and that sodium and fat intake must be limited.

The child was admitted to the hospital four times while in the mother’s care.

The first time in August 2012 was when the nephrotic syndrome was diagnosed, so

that admission could not be attributed to medical neglect. However, the next

1
The then two and a half year old child had not been to the doctor for
approximately two years and was behind on her immunizations at the time of the
hospitalization.
2
hospitalization immediately thereafter in August 2012 was due to the mother’s

failure to provide the medication prescribed during the first hospital visit.2 It was

at this point that the Department of Children and Families became involved by

filing a petition for dependency without shelter.3 The child was adjudicated

dependent on October 24, 2012.

The child was again hospitalized in October 2012 and April 2013. At the

time of the October 2012 and April 2013 hospitalizations, the mother was not

using the Albustix® strips to test for protein in the child’s urine. The mother stole

Albustix® strips from the hospital, but never asked the Department for help in

providing the strips. The trial court found that the mother could have purchased

the strips if she had made it a priority. 4 The mother’s own testimony expressed her

2
The mother did take the child back to the hospital right away after the child’s first
hospitalization. However, had the mother provided the child with the prescribed
medication after the first hospitalization, the second hospitalization may have been
unnecessary and the child then likely would have not come into the dependency
system in August 2012.
3
The mother also had substance abuse issues at the time the dependency petition
was filed. During the pendency of the case she struggled with substance abuse,
treatment, and relapse; drug dealing; unemployment; and housing instability. By
the time of the termination of parental rights trial, she was apparently able to
address those additional issues, although it took until the end of 2014 —
substantially delaying any potential reunification even if the medical issues had
been addressed.
4
While termination of parental rights cannot be premised on a parent’s lack of
financial resources, here the trial court’s factual finding on the mother’s ability to
pay has record support, and we will not reweigh the evidence. T.C. v. Dep’t of
Children & Families, 961 So. 2d 1060 (Fla. 4th DCA 2007).
3
opposition to receiving help from the Department or FamiliesFirst (the community-

based care provider for the Department in Santa Rosa County), including refusing

to ask for help in purchasing the strips.

The mother admitted that it was her fault that the child had a relapse in April

2013, and Dr. Carol Sekhon testified that the child protective team had a positive

finding of medical neglect by the mother in April 2013. The then three-year-old

child gained fourteen pounds in one month due to fluid retention associated with

her nephrotic syndrome prior to the April 2013 hospitalization. Dr. Kohaut

testified that the child had been in prolonged relapse at least a week before the

child was hospitalized, and she was at risk for overwhelming sepsis and death.

The child was removed from the mother and sheltered in medical foster care in

April 2013 after the relapse and fourth hospitalization.

Following the child’s removal from the mother, the case plan goal changed

to reunification. The case plan tasks in the reunification case plan required the

mother to follow any recommendation in the child’s medical treatment plan and

noted that a barrier to reunification was the mother needing to follow the low

sodium diet.5 FamiliesFirst provided transportation so the mother could visit with

5
There were other case plan tasks for the mother. Although the mother’s delay in
completing the other case plan tasks had the effect of delaying any attempted
reunification even if the medical issues had not been present, the termination of
parental rights final judgment was based on the mother being a continuing danger
4
the child and also so the mother could shop for appropriate food for the child to

address the child’s medical needs during the mother’s visitation. The mother was

also provided with training on nephrotic syndrome, reading food labels, and the

importance of providing the child with an appropriate diet to address her nephrotic

syndrome.

Although the evidence was in conflict, the trial judge heard evidence which

supports the finding that after removal, the mother was still not compliant with

feeding the child an appropriate diet during the mother’s visitations, putting the

child’s health at risk. The mother failed to comply in spite of the mother being

trained on the risks of the child not following the diet. The child had a bloated

stomach at times when coming back from visits with the mother, as well as

elevated protein levels.6 During visitations the mother provided the child with

food that violated the dietary restrictions including on occasion pizza and potato

chips. The mother also overfed the child. Additionally and perhaps most

importantly, the mother expressed to various people that she was not supportive of

the dietary restrictions necessary to address the child’s medical issue. The mother

was not able to maintain an appropriate diet for the child during visits, so longer

to the child by not addressing the child’s medical issue.
6
Although Dr. Kohaut testified that relapses could be caused by other factors than
diet, the trial court had evidence that the elevated protein in the child’s urine and
relapses coincided with the mother feeding the child during visits.

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visitation or reunification was not able to occur because it would put the child’s

health at risk.7

Over a year after removal the Department filed the petition to terminate the

mother’s parental rights to T.P. The termination of parental rights adjudication

hearing did not commence until March 16, 2015, and then concluded on April 13,

2015, almost two years after removal. Following the adjudication hearing, the

court entered the eighteen-page final judgment with detailed findings of fact which

is the subject of the mother’s appeal.

Standard of Review

While the trial court must find that the evidence is clear and convincing, this

court’s review is limited to whether competent, substantial evidence supports the

trial court‘s final judgment, and whether the appellate court “cannot say that no

one could reasonably find such evidence to be clear and convincing.” N.L. v.

Dep’t of Children & Family Servs., 843 So. 2d 996, 1000 (Fla. 1st DCA 2003).

This standard of review is highly deferential. Id. Put another way, “a finding that

evidence is clear and convincing enjoys a presumption of correctness and will not

be overturned on appeal unless clearly erroneous or lacking in evidentiary

7
The mother was reunified with one of her other children. While this is laudable,
that child does not suffer from the potentially fatal nephrotic syndrome. The
mother had to address the medical issues as to T.P. before she could be safely
reunified, and there was evidence for the trial court to find she did not do so.
6
support.” J.E. v. Dep't of Children & Families, 126 So. 3d 424, 427 (Fla. 4th DCA

2013) (quoting D.P. v. Dep't of Children & Family Servs., 930 So. 2d 798, 801

(Fla. 3d DCA 2006)).

Standard for Terminating Parental Rights

There are three requirements to terminate parental rights. First, the

Department must prove statutory grounds under section 39.806, Florida Statutes.

See Rathburn v. Dep’t of Children & Families, 826 So. 2d 521, 523 (Fla. 4th DCA

2002). Here the Department sought termination of the mother’s parental rights

pursuant to subsection 39.806(1)(c), Florida Statutes, which authorizes,

When the parent or parents engaged in conduct toward the child or
toward other children that demonstrates that the continuing
involvement of the parent or parents in the parent-child relationship
threatens the life, safety, well-being, or physical, mental, or emotional
health of the child irrespective of the provision of services. Provision
of services may be evidenced by proof that services were provided
through a previous plan or offered as a case plan from a child welfare
agency.

Prior to terminating a parent's rights under subsection 39.806(1)(c), two

requirements must be met,

First, the trial court must find the children's life, safety, or health
would be threatened by continued interaction with the parent,
regardless of the provision of services. See In re C.W.W., 788 So. 2d
1020, 1023 (Fla. 2d DCA 2001). “In essence, the trial court must find
that any provision of services would be futile or that the child[ren]
would be threatened with harm despite any services provided to the
parent.” Id.; see also N.L. v. Dep't of Children & Family Servs., 843
So. 2d 996, 1002 (Fla. 1st DCA 2003).

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M.H. v. Dep’t of Children and Families, 866 So. 2d 220, 222 (Fla. 1st DCA 2004).

Second, to terminate parental rights under subsection 39.806(1)(c), the Department

must show that there is no reasonable basis to believe a parent will improve. See

id. at 222-23.

In addition to providing a statutory ground, the second requirement before

parental rights may be terminated is a showing by the Department that termination

is in the child’s manifest best interest pursuant to section 39.810, Florida Statutes.

The third and final requirement is that to pass constitutional muster, termination of

parental rights must meet the least restrictive means test. See L.D. v. Dep’t of

Children and Family Servs., 957 So. 2d 1203, 1205 (Fla. 3d DCA 2007); Padgett v.

Dep’t of Health & Rehab. Servs., 577 So. 2d 565, 571 (Fla. 1991).

First Requirement — Analysis of Termination under 39.806(1)(c)

The Department’s statutory ground for termination in this case was section

39.806(1)(c), Florida Statutes. There was ample support in the record for the trial

court to conclude that the mother’s continuing involvement with the child puts the

child’s life, health, or safety at risk regardless of any additional support provided to

the mother. The mother had an opportunity to change, but remained opposed to

allowing the Department or FamiliesFirst to help, denied she needed help, and did

not appropriately address the child’s dietary needs in spite of being provided the

knowledge and support to do so. The mother had almost two years from removal

8
and over two and a half years from commencement of the dependency action to

address the child’s medical issue, but the evidence supports the trial court’s finding

that she failed to do so.

There was evidence to support the trial court’s finding that the mother was

not supportive of the child’s dietary restrictions. The trial court found, and the

record supports, that “[t]he mother has not demonstrated any change in

circumstances that led to the need for the child’s removal.” Consequently, the trial

court’s finding “that further efforts by the Department to rehabilitate the mother

would be futile” is also based on record evidence. The trial court therefore had

grounds under section 39.806(1)(c), Florida Statutes, to terminate the mother’s

parental rights. See L.J. v. Fla. Dep’t of Children & Families, 33 So. 3d 99 (Fla.

1st DCA 2010); M.H., 866 So. 2d at 222-23. On appeal, the mother essentially

asks us to reweigh the evidence heard by the trial court. That is not our appropriate

role. N.L., 843 So. 2d at 999-1000.

Second Requirement — Manifest Best Interest

The second requirement was for the Department to prove termination of

parental rights was in the child’s manifest best interest. There are eleven manifest

best interest factors to be considered under section 39.810, Florida Statutes. A trial

court must consider and evaluate all of the factors. “Full and accurate fact finding

is essential not only on the question whether [the Department] has authority to

9
terminate parental rights but also on the question whether it is in the child’s best

interest to do so.” C.C. v. Dep’t of Children & Family Servs., 812 So. 2d 520, 523

(Fla. 1st DCA 2002).

Although it might be beneficial for an appellate court to know how much

weight the trial court assigned to each factor, there is no requirement in the statute

to do so. Instead all that is required is that the trial court make findings sufficient

for an appellate court to determine whether an abuse of discretion has occurred.

J.S. v. Florida Dep’t of Children & Families, 18 So. 3d 1170 (Fla. 1st DCA 2009)

(citing State, Dep’t of Children & Families v. S.H., 734 So. 2d 1080, 1082 (Fla. 1st

DCA 1999)).

Here the trial court made full findings on all eleven factors and found that

overall, termination of the mother’s parental rights was in the child’s manifest best

interest. The findings were sufficient for appellate review, and there was evidence

to support the findings. Reweighing the evidence at the appellate level would

violate the highly deferential standard we must apply. N.L., 843 So. 2d at 999.

Third Requirement — Least Restrictive Means

The third and final consideration is whether the termination of parental

rights passes the least restrictive means test. In spite of the name, “least restrictive

10
means” does not mean that no alternative to termination of parental rights is

conceivable by a court. 8 As stated in Padgett,

We note that because parental rights constitute a fundamental liberty
interest, the state must establish in each case that termination of those
rights is the least restrictive means of protecting the child from serious
harm. This means that [the Department] ordinarily 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.
577 So. 2d at 571.
The least restrictive means test under Padgett is therefore satisfied if a case

plan is offered to a parent to address the issues which caused the child to become

dependent, and services are provided to the parent to rehabilitate the parent and

reunite the family. 9 Id. Here services were offered to the mother, and although she

was able to complete various other case plan tasks, she was not able to comply

with the key case plan task of addressing the child’s medical needs by supplying an

appropriate diet during visitation.

8
If we were using an “inconceivable” test then the final judgment of termination of
parental rights would fail here and in almost every case. We can speculate on what
the Department or FamiliesFirst could have done with unlimited resources or
unlimited time, but that is not the least restrictive means test. See Statewide
Guardian Ad Litem Program v. A.A., 171 So. 3d 174, 177 (Fla. 5th DCA 2015)
(explaining that the least restrictive means test does not mean that all available
alternatives to termination of parental rights have been exhausted).
9
The least restrictive means test can be satisfied by other proof such as showing
egregious conduct of a parent towards a child. See In re E.R., 49 So. 3d 846 (Fla.
2d DCA 2010). Egregious conduct is not alleged here. See §39.806(1)(f), Florida
Statutes.
11
 Following Padgett, this Court and others have imposed additional

requirements for termination of parental rights to pass the least restrictive means

test. “The least restrictive means test in the context of termination of parental

rights requires those measures short of termination be utilized if such measures

will permit the safe reestablishment of the parent-child bond.” M.H., 866 So. 2d at

223; C.M. v. Dep’t of Children & Families, 953 So. 2d 547 (Fla. 1st DCA 2007).

In this case, the trial court analyzed the least restrictive means test including

the requirements imposed subsequent to Padgett, and found that the “mother’s

actions and inactions, as established by the evidence, demonstrate the child cannot

be safely reunited with her and that the termination of parental rights is the only

safe means to protect her.” The trial court noted that the mother has been given

“an abundance of time to demonstrate she can properly care for the child” but the

child’s health would be at risk if reunited with the mother. The trial court had

ample record evidence to make this finding and the least restrictive means test is

therefore satisfied. “[T]he [parental] right is not absolute but is subject to the

overriding principle that it is the ultimate welfare or best interest of the child which

must prevail.” Padgett, 577 So. 2d at 870 (citing In re Camm, 294 So. 2d 318, 320

(Fla. 1974)).

Conclusion

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 For the reasons set forth above, we believe the trial court’s findings are

supported by competent, substantial evidence. A statutory ground for termination

of parental rights was proven, evidence supports the court’s finding that

termination is in the child’s manifest best interest, and termination of parental

rights passes the least restrictive means test.

AFFIRMED.

BENTON and OSTERHAUS, JJ., CONCUR.

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