S.M., etc. v. Florida Department of Children and Families

Supreme Court of Florida
____________

No. SC15-2127
____________

S.M., etc.,
Petitioner,

vs.

FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, et al.,
Respondents.

[September 1, 2016]

PARIENTE, J.

This case involves what is constitutionally required before terminating the

parental rights to children. Recognizing that parents have a fundamental liberty

interest in being a parent to their children, this Court has required that, as part of a

parent’s constitutional rights, the termination of parental rights be the “least

restrictive means” of protecting the child from harm. Padgett v. Dep’t of Health &

Rehab. Servs., 577 So. 2d 565, 571 (Fla. 1980). The mother of three minor

children, while conceding that the grounds for termination of parental rights had

been met and that reunification would be harmful to the children, asserts that the
trial court should have considered permanent guardianship or some other

arrangement rather than termination of her parental rights.1

The specific issue we address, based on a certified conflict between the

Fourth District’s opinion in S.M. v. Florida Department of Children & Families,

190 So. 3d 125 (Fla. 4th DCA 2015), and the First District’s opinion in C.D. v.

Florida Department of Children & Families, 164 So. 3d 40 (Fla. 1st DCA 2015), is

whether, under the least restrictive means prong enunciated in Padgett, the trial

court is required to consider a permanent guardianship rather than adoption in

order to preserve the parent-child bond and allow the parent to have continued

contact with the child, after the grounds for termination of parental rights have

been established and the court has determined that reunification with the parent

would be harmful to the child.2 As the Fourth District Court explained, the focus

of the “least restrictive means” prong is whether the parent has the ability to be a

parent to the child with all of the responsibilities that it entails and “not merely to

be an occasional presence in the life of the child.” S.M., 190 So. 3d at 128.

1. As set forth in the trial court’s order, the rights of the biological fathers
are not at issue because their rights were terminated.

2. The mother and identified fathers were appointed attorneys to represent
them throughout the proceedings. The children were appointed a guardian ad
litem, although they were not represented by an attorney.

-2-
 We agree with the conclusion of the Fourth District, which is also advanced

by the Department of Children and Families (DCF) and the Guardian Ad Litem

program (GAL). The least restrictive means prong does not require the trial court

to consider a permanent guardianship, instead of adoption, after the grounds for

termination have been established by clear and convincing evidence and

reunification would not be in the manifest best interests of the child. Not only

would this option be contrary to legal precedent, but it would also be contrary to

the legislative scheme. Section 39.621, Florida Statutes (2016), specifies that

permanent guardianship shall be considered only after reunification and adoption

are not available options.

Accordingly, we approve the decision of the Fourth District in S.M. and

disapprove the decision of the First District in C.D, to the extent that it could be

read as prohibiting termination of parental rights if there is any emotional bond

between the parent and child and there is another permanency option, such as

guardianship, that would protect the child from harm.3

3. S.M. also briefed two additional issues: (1) whether the trial court erred
in allowing the testimony of mental health expert, Dr. Garma, under the Gen. Elec.
Co. v. Joiner, 522 U.S. 136 (1997), standard, and (2) whether the trial court erred
in adopting the proposed judgment of the Department of Children and Families as
its final judgment. We decline to address these issues as they are outside the scope
of the certified conflict jurisdiction. See Campbell v. State, 125 So. 3d 733, 734
n.1 (Fla. 2013) (declining to address issue beyond the basis of the Court’s conflict

-3-
 FACTS

The Fourth District set forth the material facts in the underlying termination

of parental rights trial that demonstrate the extensive efforts made by DCF to

reunify the mother with her children before it filed a petition to terminate parental

rights:

The mother had three children, born in 2007, 2008, and 2010.
Her last child tested positive for drugs when born, and a case manager
for a volunteer agency came to work with the mother and provide a
voluntary services plan for the mother. The plan included random
drug tests and counselling, and the recommendation that she obtain
employment, housing, and child care. The mother did not comply
with any of the recommendations. The case manager also observed
that one of the children had decayed teeth and needed dental work, but
the mother did not follow through on making any appointment to have
the necessary work done. Despite repeated visits from the case
manager, the mother never complied with any of the tasks in the
voluntary case plan, other than going once for a drug test which
proved positive for marijuana. The mother moved several times
without telling the case manager where she was moving. When the
case manager finally found her in a home under construction and
containing hazards to the children, the case manager filed an abuse
report with DCF.
DCF first filed a shelter petition for the children and later filed a
dependency petition. Ultimately, it placed the two older children in
the care of the mother’s great-aunt and the youngest child with the
mother’s cousin. After the children were adjudicated dependent in
February 2012, a case plan was developed for the mother which
required her to have drug treatment and to obtain stable housing and a
job. The mother made no effort to complete any of her case tasks. In
fact, she explicitly refused to comply with drug screening and
counselling. She admitted to using marijuana on a regular basis and

jurisdiction); Paulucci v. Gen. Dynamics Corp., 842 So. 2d 797, 803 n.6 (Fla.
2003) (declining to address issues outside of the scope of the certified jurisdiction).

-4-
essentially saw nothing wrong with it. She did not visit with the
children on a regular basis. The mother also routinely missed court
hearings.
When her great-aunt became ill, the mother moved back to the
area and assisted with the children for a while. Nevertheless, she
continued to be non-compliant with drug testing as well as with
finding stable housing and a job. Finally, in June 2013, the mother
agreed to seek drug treatment. However, she was not compliant with
court-ordered drug screening. When she was screened, she
continually tested positive for marijuana. She did not successfully
complete the drug treatment.
Unfortunately, the great-aunt suffered a stroke and died in
March 2014. The cousin then took custody of the two children who
had previously been in the great-aunt’s care. The case manager noted
that the children reacted positively with the mother and clearly loved
her, but they were very attached to the cousin as their caregiver. After
the death of the great-aunt, DCF filed a petition to terminate the rights
of the mother.
In July 2014, the case manager tried again to get the mother in
for drug screening and treatment. Finally, a bed opened up in a
treatment facility. But when the mother was told that the treatment
could take up to six months, she refused to participate and told the
case manager that DCF “could make other arrangements for her
children to be adopted.”
At the final hearing on termination, in addition to the testimony
of case managers as to the mother’s complete failure to comply with
any case plan tasks despite years of assistance, a psychologist testified
that the mother had a narcissistic personality disorder, which meant
that she put her own needs and desires above those of the children.
This was evidenced in her refusal to obtain drug treatment as well as
in failing to find a job or do any work. The psychologist did not
recommend that the children be placed with the mother.
The cousin, who had custody of all three children,
acknowledged that the mother helped out on occasion with the
children and was the “primary babysitter” for the youngest child when
the cousin would work. However, the mother had also moved away
recently and saw the children infrequently. The cousin loves the
children and wants to adopt them. She would allow the mother
continued contact because the children know her. She reported that
the children love their mother, and “if [the mother’s] situation was

-5-
 different and she could, you know, have her own place and was stable,
it would be a good thing [for the children] to be with her, but that’s
not the case.”
At the close of the hearing, the mother’s counsel argued against
termination of parental rights and maintained that the evidence
showed that the mother had a good relationship with her children and
could rehabilitate herself if given more time and that termination was
not the least restrictive means of preventing harm to the children. The
court requested proposed judgments from each party, which were
circulated to the parties.
The court adopted DCF’s proposed final judgment and
terminated the mother’s parental rights. In the final judgment, the
court found that the mother had made essentially no effort to comply
with the case plan. When the children were removed from her
because of her transient, unstable lifestyle, she made no effort to
improve and remained unstable. Her drug use continued unabated,
and she spent whatever money she had on drugs and not on her
children. The court found no reasonable basis to think that the mother
would improve if given more time, as she had failed to show any
progress in over three years. The court concluded that DCF had
proven grounds for termination as well as that termination was in the
manifest best interest of the children.

S.M., 190 So. 3d at 126-28.

S.M. challenged whether termination of parental rights was the least

restrictive means even while conceding that grounds for termination of parental

rights had been met. S.M. relied primarily on the evidence of her loving bond with

her children. She further cited the placement of her children with her cousin, who

would allow S.M. to visit and babysit the children. Id. at 127. S.M. argued that,

under the circumstances of her case, termination was not warranted and relied on

the First District’s opinion in C.D. Id. at 129.

-6-
 In C.D., the First District held that because the children in that case had a

positive bond with their parents and their placement with a relative allowed the

children continued contact with the parents, termination of the parents’ rights was

not the least restrictive means. 164 So. 3d at 44. The Fourth District disagreed

with the First District’s interpretation of the least restrictive means prong, holding

that the prong was not about “whether, under controlled circumstances, a parent

can have contact with the child and develop an emotional bond, but whether a

mother . . . can be a parent to the child, with all of the responsibility and care that

entails.” S.M., 190 So. 3d at 129. Rather, once the “constitutional test for

termination of parental rights was met . . . the court was not required to consider a

permanent guardianship.” Id. at 126. The Fourth District certified conflict with

C.D.

In accordance with Florida Rule of Appellate Procedure 9.146(h), this case

has been expedited by the Court because it involves termination of parental rights.

ANALYSIS

In this case, we clarify the meaning of the “least restrictive means” prong

that the State must satisfy before a parent’s rights are terminated. S.M. concedes

that DCF has proven one of the statutory grounds for termination of parental rights

to all of her children under section 39.806 by clear and convincing evidence. She

also does not contest that termination of her parental rights would be in the

-7-
manifest best interests of the children, under the considerations required by section

39.810. She argues only that termination of her liberty interest in being a parent to

her children is not the least restrictive means to protect her children from harm.

The mother misunderstands the purpose of the least restrictive means prong.

Focusing on the third prong of the termination of parental rights test, our

analysis will first examine the process for the termination of parental rights

provided for in an extensive statutory scheme, then turn to an explanation of the

least restrictive means prong of the termination of parental rights test, followed by

a discussion of the conflict case. Finally, we will address the legislative intent and

policy in this area, concluding that the Fourth District’s interpretation in S.M. is

more consistent with the nature of the fundamental liberty interest in being a parent

to one’s child as well as the Legislature’s permanency goals in dependency and

termination of parental rights proceedings.

Dependency and Termination of Parental Rights Proceedings in Florida

There is a multi-step process set forth in the statutory scheme and case law

of this State before parental rights can be terminated in deference to the important

constitutional rights of the parents at stake. The process begins with a shelter

petition and then, if the child is sheltered, a petition for dependency and a

determination by the trial court of dependency if warranted under the facts of the

case. Specifically, the Florida Statutes lay out the process in great detail, from the

-8-
initial child protective services investigation (section 39.301), the shelter hearing

(section 39.401), the adjudication of dependency (section 39.501), the case plan

(section 39.6011), and finally the permanency determination (section 39.621) and

the termination of parental rights (section 39.801).

The Florida Rules of Juvenile Procedure governing Dependency and

Termination of Parental Rights Proceedings also specify in detail the procedures

for effectuating the legislative scheme beginning with the Shelter Petition (Rule

8.305), the Dependency Petition (Rule 8.310), the Case Plan (Rules 8.400, 8.401

and 8.410), and finally the Termination of Parental Rights Petition (Rule 8.500).

Judicial reviews are provided for by statute, section 39.701, and embedded

throughout the process (Rule 8.415).

For termination to occur, section 39.806, Florida Statutes, requires that the

trial court find by clear and convincing evidence that one or more of the grounds

for termination under the section has been established. § 39.802(4)(a), Fla. Stat.

(2016). In pertinent part, the relevant grounds are:

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.

§ 39.806(1)(c), Fla. Stat. (2016).

-9-
 In most cases, before termination of parental rights is considered, the first

step in the proceedings is an adjudication of dependency, and once the children are

adjudicated dependent, the parent is ordinarily given the opportunity to comply

with a case plan. See § 39.6011, Fla. Stat. (2016) (requiring DCF to prepare a draft

of the case plan for each child receiving services under this chapter). However, if

the parent cannot succeed in complying with the case plan, the statute provides, in

pertinent part:

(e) When a child has been adjudicated dependent, a case plan has
been filed with the court, and:
1. The child continues to be abused, neglected, or abandoned
by the parent or parents. The failure of the parent or parents to
substantially comply with the case plan for a period of 12
months after an adjudication of the child as a dependent child or
the child’s placement into shelter care, whichever occurs first,
constitutes evidence of continuing abuse, neglect, or
abandonment unless the failure to substantially comply with the
case plan was due to the parent’s lack of financial resources or
to the failure of the department to make reasonable efforts to
reunify the parent and child.

§ 39.806(e), Fla. Stat. (2016).

Second, Florida Statutes also require that the trial court shall consider “the

manifest best interests of the child” by evaluating the relevant factors listed under

section 39.810, Florida Statutes. § 39.802(4)(c), Fla. Stat. (2016). Pursuant to

section 39.810, these factors include:

(1) Any suitable permanent custody arrangement with a
relative of the child. However, the availability of a nonadoptive
placement with a relative may not receive greater consideration than

- 10 -
 any other factor weighing on the manifest best interest of the child and
may not be considered as a factor weighing against termination of
parental rights. If a child has been in a stable or preadoptive
placement for not less than 6 months, the availability of a different
placement, including a placement with a relative, may not be
considered as a ground to deny the termination of parental rights.
(2) The ability and disposition of the parent or parents to
provide the child with food, clothing, medical care or other remedial
care recognized and permitted under state law instead of medical care,
and other material needs of the child.
(3) The capacity of the parent or parents to care for the child to
the extent that the child’s safety, well-being, and physical, mental, and
emotional health will not be endangered upon the child’s return home.
(4) The present mental and physical health needs of the child
and such future needs of the child to the extent that such future needs
can be ascertained based on the present condition of the child.
(5) The love, affection, and other emotional ties existing
between the child and the child’s parent or parents, siblings, and other
relatives, and the degree of harm to the child that would arise from the
termination of parental rights and duties.
(6) The likelihood of an older child remaining in long-term
foster care upon termination of parental rights, due to emotional or
behavioral problems or any special needs of the child.
(7) The child’s ability to form a significant relationship with a
parental substitute and the likelihood that the child will enter into a
more stable and permanent family relationship as a result of
permanent termination of parental rights and duties.
(8) The length of time that the child has lived in a stable,
satisfactory environment and the desirability of maintaining
continuity.
(9) The depth of the relationship existing between the child and
the present custodian.
(10) The reasonable preferences and wishes of the child, if the
court deems the child to be of sufficient intelligence, understanding,
and experience to express a preference.
(11) The recommendations for the child provided by the
child’s guardian ad litem or legal representative.

§ 39.810, Fla. Stat. (2016).

- 11 -
 Finally, because parents have a fundamental liberty interest in being a parent

to their children, constitutional principles and case law require that DCF

demonstrate that some action short of termination of parental rights could have

been undertaken by the State before filing a petition to terminate the parent’s right,

indicating that termination is the least restrictive means of protecting the child

from harm. Padgett, 577 So. 2d at 570. It is the interpretation of the “least

restrictive means” prong that is our focus.

Least Restrictive Means Prong

Termination of parental rights cases are necessarily centered on the

fundamental liberty interest in being a parent to a child. See Santosky v. Krammer,

455 U.S. 745, 753, 787 (1982); Padgett, 577 So. 2d at 570. In discussing this

fundamental right, the United States Supreme Court has stated:

The fundamental liberty interest of natural parents in the care,
custody, and management of their child does not evaporate simply
because they have not been model parents or have lost temporary
custody of their child to the State. Even when blood relationships are
strained, parents retain a vital interest in preventing the irretrievable
destruction of their family life. If anything, persons faced with forced
dissolution of their parental rights have a more critical need for
procedural protections than do those resisting state intervention into
ongoing family affairs.

Santosky, 455 U.S. at 753. Likewise, this fundamental right is equally as strong, if

not stronger, under the Florida Constitution. This Court, in Padgett, explained:

“Florida courts have long recognized this fundamental parental right . . . ‘to enjoy

- 12 -
the custody, fellowship and companionship of [their] offspring. This rule is older

than the common law itself.’ ” 577 So. 2d at 570 (quoting State ex rel. Sparks v.

Reeves, 97 So. 2d 18, 20 (Fla. 1957)).

Yet the constitutional right to be a parent without state interference is not

unlimited. The right to be a parent carries with it important responsibilities to be

able to care for one’s children without causing them serious harm. Specifically,

“the only limitation on this rule of parental privilege is that as between the parent

and the child the ultimate welfare of the child must be controlling.” Id. (quoting

Sparks, 97 So. 2d at 20). The parent’s rights are subject to the overriding principle

that it is the ultimate welfare and the best interests of the children that must prevail.

Id.

The least restrictive means prong of the termination of parental rights test is

tied directly to the due process rights that must be afforded to a parent before his or

her parental rights are terminated and is intended to protect the rights of both the

parent and the child. This prong focuses specifically on what actions were taken

by the State before filing a petition to terminate the parent’s rights. “When the

State moves to destroy weakened familial bonds, it must provide the parents with

fundamentally fair procedures.” Santosky, 455 U.S. at 753. As this Court has

stated:

To protect the rights of the parent and child, we conclude that
before parental rights in a child can be permanently and involuntarily

- 13 -
 severed, the state must show by clear and convincing evidence that
reunification with the parent poses a substantial risk of significant
harm to the child. Implicit in this standard is the basic requirement
that, under ordinary circumstances, the state must show that the parent
abused, neglected or abandoned a child.

Padgett, 577 So. 2d at 571 (footnote omitted).

The determination of the least restrictive means must be evaluated in light of

the right being terminated: to be a parent to one’s child. Consideration of this

prong is all the more critical in the extraordinary case, where DCF does not offer

the parent the chance to comply with the requirements of a case plan and be

reunited with his or her child and, instead, moves to terminate the parent’s rights to

the child based on the parent’s abuse or neglect of a different child. Id. at 571.

This Court has made clear that the least restrictive means prong is implicit in

Florida’s statutory scheme based on the Court’s obligation to construe statutes in a

constitutional manner. Fla. Dep’t of Children & Families v. F.L., 880 So. 2d 602,

609 (Fla. 2004). To satisfy the least restrictive means prong, DCF must

“ordinarily” prove that before it files a petition to terminate the parent’s rights,

DCF made a “good faith effort to rehabilitate the parent and reunite the family.”

Padgett, 577 So. 2d at 571. In most cases, where DCF is not moving directly from

sheltering the child to seeking termination of the parent’s rights, as occurred in

Padgett, this prong is generally satisfied by DCF offering the parent a case plan

and providing the parent with the help and services necessary to complete the case

- 14 -
plan. Id. The least restrictive means prong, which is derived from Padgett, “is not

intended to preserve a parental bond at the cost of a child’s future. Rather . . . it

simply requires that measures short of termination should be utilized if such

measures can permit the safe re-establishment of the parent-child bond.” Fla.

Dep’t of Children & Families v. B.B., 824 So. 2d 1000, 1009 (Fla. 5th DCA 2002).

Conflict Case

In the conflict case, C.D., the children were removed from their mother and

placed in foster care with their mother’s sister. 164 So. 3d at 41. A psychologist

testified that although the children were not harmed by weekly visits with the

mother, reunification would pose a significant risk of harm to the children’s

wellbeing. Id. There was also testimony that even though the parents had a bond

with the children, terminating parental rights would not harm the children because

the maternal aunt wished to adopt the children and would allow continued contact

with the mother. Id. The First District found that the State failed to prove that

termination was the least restrictive means to protect the children from harm

because of inconsistencies in the evidence presented. Id. at 44. The First District,

held that “DCF failed to establish that TPR [termination of parental rights], as

opposed to some other arrangement, is the least restrictive means of protecting the

children from harm. This conclusion is based on the testimony that it was safe for

the children to have supervised contact with Appellant, as well as the GAL’s own

- 15 -
assessment that TPR would not harm the children despite their bond with

Appellant, because the prospective adoptive aunt would allow such contact.” Id. at

43 n.1.

Proper Interpretation of the Least Restrictive Means Prong

S.M. argues that C.D. stands for the proposition that where a stable, long-

term placement with a family relative is available that poses no risk of harm by the

parent to her children and there is a strong parent-child bond, termination of

parental rights should be rejected in favor of this other alternative placement. She

contends that C.D. requires the consideration of the nurturing bond between parent

and child in any least restrictive means analysis. The trial court must decide

whether some avenue short of the evisceration of the parent-child bond could

foster the reestablishment of the parent-child bond. S.M. contends that when there

is no risk to the child’s safety, an alternative, long-term placement with a relative is

more appropriate than termination of parental rights. We reject this argument.

First and importantly, the First District clarified its holding in C.D. in Fla.

Department of Children & Families v. B.C., 185 So. 3d 716 (Fla. 1st DCA 2016),

stating:

The Court in C.D. specifically disclaimed that its decision could
be interpreted to mean that termination of parental rights is precluded
because there is some connection or bond between the children and
their mother and there may be some future supervised contact between
the mother and the children. Instead, on the specific facts in the case,
this Court found that the Department failed to establish that

- 16 -
 [termination], as opposed to some other arrangement, is the least
restrictive means of protecting the children from harm.

Id. at 719-20 (citing Statewide Guardian Ad Litem Program v. A.A., 171 So. 3d

174 (Fla. 5th DCA 2015)) (internal quotations omitted). Indeed, the First District

in B.C. noted the uniformity of judicial precedent rejecting the notion that

termination is impermissible under the least restrictive means prong “simply

because some limited and highly restricted contact with a parent may pose no

harm.” Id. at 720. In light of this clarification, it is clear that not even the First

District would embrace as expansive of a reading of C.D. as S.M. asserts in this

case. The First District made clear in B.C. that C.D. was based on the specific

facts in that case and on the inconsistencies of the testimony presented, not on

consideration of the bond between the parent and children.

Next, even if S.M.’s characterization of C.D.’s holding were accurate, the

Fourth District’s interpretation of the least restrictive means prong more faithfully

articulates the appropriate considerations to be taken into account when analyzing

the least restrictive means prong of the termination of parental rights test. The

Fourth District described the conflict between the two opinions as follows:

We think C.D.’s interpretation of the least restrictive means test is
contrary to Padgett. The test is not whether, under controlled
circumstances, a parent can have contact with the child and develop
an emotional bond, but whether a mother or father can be a parent to
the child, with all of the responsibility and care that entails. If
reunification is not possible because the father or mother cannot or
will not assume responsibility as a parent to the child, as

- 17 -
 demonstrated, for example, by the repeated failure to comply with a
case plan, then termination is the least restrictive means of preventing
harm.

S.M., 190 So. 3d at 129.

As DCF and GAL note, this interpretation of the least restrictive means

prong properly puts the focus on the State’s actions prior to filing the termination

of parental rights petition, rather than on the consideration of what remains of the

bond between parent and child. In adhering to the reason behind the least

restrictive means analysis and to ensure that parents are afforded due process

before their fundamental right is terminated, the Fourth District correctly analyzed

whether some action, apart from termination, could have been undertaken by the

State prior to filing the petition to terminate the parent’s rights that would have

preserved the parent-child bond and still protected the child from harm. This

interpretation, as opposed to the interpretation of the First District in C.D. that

S.M. alleges, appropriately considers the process due and the parental right being

terminated—the right to be a parent to one’s child—rather than focusing on the

bond between the parent and child. This interpretation is also consistent with the

views of the other appellate courts:

Although the children were placed with a relative, the
availability of relative placement does not mean that termination of
the mother’s parental rights is not the least restrictive means of
preventing harm. Courts have frequently determined that the
availability of a relative placement is not the dispositive consideration
under the least restrictive means test. See In re Z.C., 88 So. 3d 977

- 18 -
 (Fla. 2d DCA 2012); S.S. v. Dep’t of Children & Family Servs., 891
So. 2d 1068, 1070 (Fla. 2d DCA 2004); R.L. v. Dep’t of Children &
Families, 955 So. 2d 1240 (Fla. 5th DCA 2007); see also N.S. v.
Dep’t of Children & Families, 36 So. 3d 776, 779 (Fla. 3d DCA 2010)
(holding that “[t]he existence of possible placement with a relative is
irrelevant to the least [restrictive] means test, where DCF made
reasonable [but unsuccessful] efforts to rehabilitate the Mother and
provide services to her and her children with the goal of reuniting
them as a functional family”).

S.M., 190 So. 3d at 129.

In termination of parental rights cases, consideration of the bond between

the parent and child and the best permanency decision for the child is appropriate

and relevant in an analysis of the second prong of the termination of parental rights

test, which requires the trial court to consider the manifest best interests of the

child by evaluation of the relevant factors listed under section 39.810, Florida

Statutes. Some of those factors listed include:

(1) Any suitable permanent custody arrangement with a
relative of the child. However, the availability of a nonadoptive
placement with a relative may not receive greater consideration than
any other factor weighing on the manifest best interest of the child and
may not be considered as a factor weighing against termination of
parental rights. If a child has been in a stable or preadoptive
placement for not less than 6 months, the availability of a different
placement, including a placement with a relative, may not be
considered as a ground to deny the termination of parental rights.

...
(5) The love, affection, and other emotional ties existing
between the child and the child’s parent or parents, siblings, and other
relatives, and the degree of harm to the child that would arise from the
termination of parental rights and duties.

- 19 -
 ...

(9) The depth of the relationship existing between the child and
the present custodian.

§ 39.810, Fla. Stat. (2016). Therefore, to require consideration of the bond

between the parent and child in the third prong of the test, the least restrictive

means prong, would be unnecessarily duplicative and confuse the purpose of that

prong: to ensure that the parent is afforded due process by the State before his or

her fundamental right to be a parent to his or her children is terminated.

The Fourth District’s interpretation is also more consistent with the

Legislature’s permanency goals in dependency cases. The Legislature has clearly

stated its preference of permanency options for children in the dependency system

in section 39.621, Florida Statutes:

(2) The permanency goals available under this chapter, listed in
order of preference, are:

(a) Reunification;
(b) Adoption, if a petition for termination of parental rights has
been or will be filed;
(c) Permanent guardianship of a dependent child under s. 39.6221;
(d) Permanent placement with a fit and willing relative under
s. 39.6231; or
(e) Placement in another planned permanent living arrangement
under s. 39.6241

Id. §§ 39.621(2)(a)-(e) (emphasis added).

Only after the trial court determines that adoption or reunification would not

be in the best interests of the child may DCF consider “some other arrangement.”

- 20 -
Section 39.6221, specifically states: “[i]f a court determines that reunification or

adoption is not in the best interest of the child, the court may place the child in a

permanent guardianship with a relative or other adult approved by the court.” Id.

§ 39.6221(1).

The Legislature has also made clear that “[t]ime is of the essence” in

providing permanency for children requiring that, if possible, children should be

placed in a permanent living situation within one year of coming into care.

§ 39.621(1), Fla. Stat. Timeliness is also mandated by the federal government.

See 42 U.S.C. § 671(a)(15)(C) (2015) (requiring that reasonable efforts shall be

made to place the child in a timely manner in accordance with the permanency

plan); see also 42 U.S.C. § 675(5)(C) (2015) (requiring a permanency hearing to be

held, no later than twelve months after the date the child is considered to have

entered foster care).

The position advocated by S.M. runs contrary to these goals. First, S.M.

states that if the children have a bond with the parents, then children should

continue to remain involved in the state dependency system through a permanent

guardianship, so long as they are in a long-term placement and are not being

harmed. When a person is appointed the permanent guardian of the child, the court

retains jurisdiction over the case, and the permanency determination can be

modified at any time upon court approval. See § 39.6221(5), Fla. Stat. (2016). A

- 21 -
permanent guardianship does not terminate the parent-child relationship.

§ 39.6221(6), Fla. Stat. Second, S.M. also advocates that “some other

arrangement,” as opposed to termination of rights and adoption, should be the

preferred permanency goal. Both of these arguments shift the focus of the

termination of rights hearing away from the best interests of the child to the

parent’s interests in preserving the parent-child bond.

While the Court and the Legislature understand the importance of the parent-

child bond, that is the very reason that all efforts are made before termination of

parental rights occurs to assist the parent in being able to parent his or her child

and protect his or her child from harm. The “right” of a parent to a bond with the

child is important, but ultimately the health, welfare, and safety of the child must

be paramount. Being a parent requires parental obligations to care for the child,

specifically to ensure the child’s life, safety, well-being, and physical, mental, and

emotional health. See § 39.806(c), Fla. Stat. (2016).

Contrary to S.M.’s assertion, termination of parental rights does not always

end in eviscerating the bond between the parent and child forever. In looking at

the best interests of the child, the Legislature has left open the possibility of

allowing continued visitation between a biological parent and child after the

parent’s rights have been terminated. See § 39.811(7)(b), Fla. Stat. (2016); Fla.

Dep’t of Children & Family Servs. v. A.D., 904 So. 2d 480, 482 (Fla. 1st DCA

- 22 -
2005) (holding “the termination of parental rights does not necessarily mean that

all bonds are broken between parent and child. A court may allow some continued

communication between the parent and children pending adoption, and even after

adoption, if it determines that such contact is in the children’s best interest.”)

These options could alleviate any concern of harm caused to the child from the

termination of the parent-child bond and still allow the child to achieve

permanency in a timely fashion.

Finally, there is a strong policy incentive in achieving permanency for

children in care as quickly as possible. This is clear in the Legislature’s statutory

requirement that “[t]ime is of the essence” in dependency cases. § 39.621(1), Fla.

Stat. (2016) (stating that “[t]ime is of the essence for permanency of children in the

dependency system”). Indeed, the United States Supreme Court and this Court

have recognized this as well. This Court has explained, “[t]imely disposition of

ineffective assistance of counsel claims is essential in light of the harm to the child

that results when permanency is unduly delayed.” J.B. v. Fla. Dep’t of Children &

Families, 170 So. 3d 780 (Fla. 2015). The United States Supreme Court has also

stated:

The State’s interest in finality is unusually strong in child-
custody disputes. The grant of federal habeas would prolong
uncertainty for children . . . , possibly lessening their chances of
adoption. It is undisputed that children require secure, stable, long-
term, continuous relationships with their parents or foster parents.
There is little that can be as detrimental to a child’s sound

- 23 -
 development as uncertainty over whether he is to remain in his current
“home,” under the care of his parents or foster parents, especially
when such uncertainty is prolonged.

Lehman v. Lycoming Cty. Children’s Servs. Agency, 458 U.S. 502, 513-14 (1982).

The least restrictive means analysis advocated by S.M. would allow children to

stay in care indefinitely, so long as they maintained a bond with their parents and

were not being harmed, which is in direct opposition to the children’s need for

permanency.

This Case

Clearly, this case is not about whether S.M. is or should be a “model

parent[].” Padgett, 577 So. 2d at 570. Both the Fourth District’s opinion and the

trial court’s 43-page order detail the efforts that were made to assist the mother

with her obligations to be a parent to her children and protect their welfare.

The three children were born in 2007, 2008, and 2010, and the last child

tested positive for drugs at birth. The State did not intervene initially, but a case

manager for a volunteer agency came to work with the mother and provide a

voluntary services plan for the mother. That plan included random drug tests and

counselling and the recommendation that she obtain employment, housing and

child care.

As the Fourth District’s opinion details, despite repeated visits from her case

manager, the mother never complied with the tasks and changed residences several

- 24 -
times without notifying the case manager. Only after the case manager determined

there were hazards in the mother’s choice of housing, a home under construction,

did the case manager file an abuse report with DCF. From the time the children

were sheltered in March of 2011 and the dependency petition filed in April of 2011

until the petition for termination of parental rights was filed, two and a half years

elapsed. The trial on the termination of parental rights did not occur until April of

2015.

The efforts made by DCF are detailed in the trial court’s order:

The children were taken into protective custody on March 18,
2011, due to the mother’s severe neglect of R.H., her substance abuse,
and her transient lifestyle which lead to instability for the children. At
the time, the mother was leaving her two young boys alone when she
went out at night. These behaviors threatened the children’s life,
safety, and health. The Department made efforts to prevent removal
by establishing safe living arrangements for the mother and her
children and offering services to address the mother’s substance abuse
and lack of supervision of her children. The mother did not avail
herself of these services; rather, she made excuses and claimed to be
too busy to take advantage of the services. After the children were
removed, the mother’s behavior did not change. She continued to live
a transient lifestyle; she continued to use marijuana and failed to
submit to random drug screens; she failed to follow through with
substance abuse treatment. Substance abuse treatment has
consistently been made available to this mother over the past four
years. During this time the mother has attended only three months of
treatment before being discharged. She never completed treatment.
The mother was placed on the drug hotline and failed to submit to
random drug screens. Every drug screen this mother has completed,
over the past four years, had been positive for THC, the active
ingredient in cannabis i.e. marijuana. At this point there is no
reasonable basis to believe the mother will improve.

- 25 -
 The trial court found that DCF had established three grounds for termination

of S.M.’s right to all three children pursuant to section 39.806, Florida Statutes, by

clear and convincing evidence: (1) section 36.806(1)(c), continuing involvement of

the parent 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; (2) section 39.806(1)(e), parent’s failure to complete or substantially

comply with the case plan for a period of 12 months, parent’s material breach of

the case plan, and child has been in care for any 12 of the last 22 months and the

parents have not substantially complied with the case plan; and (3) section

39.806(1)(j), parent has a history of extensive, abusive, and chronic use of a

controlled substance which renders her incapable of caring for the children, and

has refused or failed to complete available treatment for such use during the three-

year period immediately preceding the filing of the petition for termination of

parental rights. S.M., 190 So. 3d at 129. It also found that termination was in the

manifest best interests of the children under section 39.810, Florida Statutes, and

that reunification with S.M. would pose a substantial risk of harm to all three of her

children. Id.

As the uncontroverted facts in the record show, DCF made good faith efforts

over a four-year period to work toward reunification by offering the mother three

case plans. Despite DCF’s efforts, the mother has “no commitment to treatment”

- 26 -
for her drug problem and has shown a “pervasive pattern of putting herself first.”

In the two years following her children’s removal, S.M. never passed a drug

screening, nor did she successfully complete any drug treatment program. DCF

has more than satisfied its burden under the least restrictive means test in this case.

The children are entitled to permanency.

CONCLUSION

“While we are loath to sanction government interference in the sacrosanct

parent-child relationship, we are more reluctant still to forsake the welfare of our

youth. Florida’s children are simply too important.” Padgett, 577 So. 2d at 571.

We conclude that the Fourth District’s interpretation is more consistent with the

nature of the fundamental right to be a parent to one’s child as well as the

Legislature’s permanency goals in dependency and termination of rights

proceedings. Accordingly, based on the analysis above, we approve the decision

of the Fourth District in S.M. and disapprove the decision of the First District in

C.D. to the extent that it could be read as prohibiting termination of parental rights

if there is any emotional bond between the parent and child and there is another

permanency option, such as guardianship, that would protect the child from harm.

This case is remanded to the Fourth District on an expedited basis to ensure that

the final judgment of adoption is finalized by the trial court.

It is so ordered.

- 27 -
LABARGA, C.J., and LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ.,
concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal - Certified
Direct Conflict of Decisions

Fourth District - Case No. 4D15-2186

(St. Lucie County)

Antony Parker Ryan, Regional Counsel, and Richard Gordon Bartmon, Assistant
Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth
District, West Palm Beach, Florida,

for Petitioner

Stephanie Christina Zimmerman, Deputy Director and Statewide Director of
Appeals, Children’s Legal Services, Bradenton, Florida; and Karla F. Perkins,
Appellate Counsel, Children’s Legal Services, Miami, Florida,

for Respondent Florida Department of Children and Families

Dennis Wayne Moore, Thomasina Moore, and Wendie Michelle Cooper, Sanford,
Florida,

for Respondent Guardian ad Litem Program

- 28 -