NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
In the Interest of J.W., a child. )
)
)
M.S., )
)
Appellant, )
)
v. ) Case No. 2D15-5005
)
DEPARTMENT OF CHILDREN AND )
FAMILIES and GUARDIAN AD LITEM )
PROGRAM, )
)
Appellees. )
)
Opinion filed September 28, 2016.
Appeal from the Circuit Court for
Hillsborough County; Emily A. Peacock,
Judge.
Scott L. Robbins, Tampa, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Christopher Lumpkin and
Mary Soorus, Assistant Attorneys General,
Tampa, for Appellee Department of
Children and Families.
Laura E. Lawson, Sanford, for Appellee
Guardian ad Litem Program.
WALLACE, Judge.
M.S. appeals the order that terminated her parental rights to her child,
J.W., and the order that denied her "motion alleging ineffective assistance of counsel for
termination of parental rights proceedings and request to withdraw current counsel from
case." We affirm, without discussion, the denial of M.S.'s motion seeking a new
adjudicatory hearing based upon the alleged ineffective assistance of her court-
appointed counsel.1 Although four of the five grounds found by the trial court for
termination are not supported by competent, substantial evidence, we affirm the
termination order based on the trial court's finding that it would be harmful to the child to
continue the relationship with M.S., an incarcerated parent, under section
39.806(1)(d)(3), Florida Statutes (2014).
I. THE FACTUAL BACKGROUND
M.S. was known to the Department of Children and Families (DCF)
because of her ongoing failure to complete a case plan for her older child, S.S.
Because of M.S.'s substance abuse issues, S.S. had been sheltered in December 2011
and adjudicated dependent as to M.S. in 2012.2 J.W. was born on May 14, 2013. On
1The Florida Supreme Court has recently recognized the right to effective
assistance of counsel in proceedings involving the termination of parental rights and
established an interim procedure for addressing such claims in cases in which parental
rights are terminated. See J.B. v. Fla. Dept. of Children & Families, 170 So. 3d 780
(Fla. 2015).
2The
record reveals that S.S. was born blind and with reactive airway
disease, developmental delay, and Lennox-Gastaut syndrome (severe epilepsy).
Because of her mental illness and drug addiction, M.S. did not provide S.S. with the
care needed. S.S.'s foster mother, who has a medical background, subsequently
adopted her.
2
May 17, 2013, DCF filed an affidavit and petition for placement in shelter alleging that
J.W. was in danger because M.S. had failed to address her substance abuse and
mental health issues and had failed to obtain stable housing and stable income. The
trial court ordered that J.W., who was three days old, be placed in shelter care. Two
weeks later, M.S. voluntarily consented to J.W. being adjudicated dependent.
While J.W. was sheltered, M.S. was arrested, along with J.W.'s father, for
robbery with a deadly weapon and tampering with a witness. While in jail awaiting trial
on the criminal charges, M.S. agreed to a reunification case plan that DCF offered in
August 2013. In October 2013, the trial court accepted the reunification case plan that
required M.S. to complete a substance abuse evaluation, any recommended treatment,
and individual therapy. Under the case plan, M.S. also agreed to demonstrate stable
housing and income and to pay child support. On December 4, 2013, M.S. pleaded
guilty to armed robbery and a drug charge and was sentenced to three years in prison.
The reunification case plan was set to expire on May 14, 2014, well before the
estimated date of M.S.'s release from prison of January 23, 2016.3
On February 12, 2015, DCF petitioned to terminate M.S.'s parental rights
to J.W. on the following grounds: (1) that M.S. had abandoned J.W., section
39.806(1)(b); (2) that M.S.'s continued involvement with J.W. threatened his life or
safety regardless of the provision of services, section 39.806(1)(c); (3) that M.S.
continued to neglect or abandon J.W. after a case plan had been filed, section
39.806(1)(e)(1); (4) that M.S. failed to comply with the case plan after the child had
3Theon-line records of the Department of Corrections reflect that M.S.
was released from custody on January 17, 2016.
3
been in care for 12 of the last 22 months, section 39.806(1)(e)(3); and (5) that
continuing the parental relationship with an incarcerated parent would be harmful to
J.W., section 39.806(1)(d)(3). DCF also sought the termination of the parental rights of
J.W.'s father, to whom M.S. was not married.
The trial court held an adjudicatory hearing on two separate days in
August 2015. After the hearing, the trial court entered its order finding that DCF proved
by clear and convincing evidence all of the grounds alleged for termination. The trial
court also found that termination was in the best interest of J.W. and that termination
was the least restrictive means of protecting the child from harm. The order terminated
the parental rights of both M.S. and the child's father.
M.S. and the child's father filed separate appeals from the trial court's
order.4 On January 27, 2016, this court dismissed the father's appeal for failure to
prosecute. J.W. v. Dep't of Children & Families, No. 2D15-4723, 2016 WL 818921 (Fla.
2d DCA Jan. 27, 2016). M.S.'s appeal has proceeded to this disposition on the merits.
II. THE LEGAL BACKGROUND
The trial court must find that DCF proved grounds supporting termination
under section 39.806 by clear and convincing evidence. E.E.A. v. Dep't of Children &
Family Servs., 846 So. 2d 1250, 1251 (Fla. 2d DCA 2003). That finding is presumed
4The father's appeal was assigned to a different panel of this court. We
note that the attorneys for both M.S. and the child's father failed to comply with this
court's standard Notice to Attorneys and Parties requiring "all attorneys and
unrepresented parties [to] advise this court of related cases currently pending or
recently decided by this court." A failure by the attorneys for the parties to inform us of
the existence of related cases in matters such as this not only disregards our
reasonable request, it also makes our work more difficult and leads to the possibility of
inconsistent results. See F.G. v. Dep't of Children & Families, 192 So. 3d 1250 (Fla. 3d
DCA 2016).
4
correct but should be reversed if clearly erroneous or not supported by competent,
substantial evidence. E.R.-J. v. Dep't of Children & Family Servs., 86 So. 3d 574, 579-
80 (Fla. 2d DCA 2012). The trial court must then consider whether termination is in the
manifest best interest of the child under section 39.810. Rathburn v. Dep't of Children &
Families, 826 So. 2d 521, 523 (Fla. 4th DCA 2002). Finally, the trial court must find that
termination of parental rights is the least restrictive means of protecting the child from
harm. E.E.A., 846 So. 2d at 1252.
"Our standard of review in parental rights termination cases is highly
deferential." N.F. v. Dep't of Children & Family Servs., 82 So. 3d 1188, 1191 (Fla. 2d
DCA 2012). The trial court's ruling will be affirmed if, upon the competent, substantial
evidence presented, there is any principle or theory of law that supports the judgment
terminating parental rights. G.W.B. v. J.S.W., 658 So. 2d 961, 967 (Fla. 1995). "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
support." R.C. v. Dep't of Children & Family Servs., 33 So. 3d 710, 714 (Fla. 2d DCA
2010) (quoting N.L. v. Dep't of Children & Family Servs., 843 So. 2d 996, 999 (Fla. 1st
DCA 2003)). "Thus, we review the circuit court's ruling for evidentiary support and legal
correctness." N.F., 82 So. 3d at 1191 (citing D.P. v. Dep't of Children & Family Servs.,
930 So. 2d 798, 801 (Fla. 3d DCA 2006)).
III. DISCUSSION
A. Introduction
On appeal, M.S. contends that the trial court's findings are not supported
by competent, substantial evidence. DCF properly concedes that the trial court's
5
findings regarding the grounds for termination under sections 39.806(1)(b),
39.806(1)(e)(1), and 39.806(1)(e)(3) are not supported by competent, substantial
evidence. However, DCF argues that competent, substantial evidence supports
termination under section 39.806(1)(c) and section 39.806(1)(d)(3). Thus we will limit
our discussion of the grounds for termination to the two remaining grounds upon which
DCF relies in support of the order under review: (1) harm to the child arising from the
parent's continued involvement in the parent-child relationship under section
39.806(1)(c), and (2) harm to the child arising from the child's continued relationship
with an incarcerated parent under section 39.806(1)(d)(3).
B. Continued Involvement Under Section 39.806(1)(c)
Section 39.806(1)(c) provides that grounds for termination of parental
rights may be established
[w]hen 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.
The trial court found that M.S. had been offered services via a reunification case plan
but that M.S. failed to complete several of the case plan tasks, including individual
therapy, substance abuse evaluation and treatment, child support, stable housing, and
stable income. The trial court also found that M.S. (1) was incarcerated and was not
expected to be released until February 22, 2016; (2) was arrested and sentenced for
robbery with a knife and for tampering with a witness; (3) did not then have a substantial
or positive relationship with J.W.; (4) did not establish stable income or housing for
J.W.'s entire life; and (5) did not demonstrate "a sustained duration of sobriety outside
6
of residential treatment or incarceration in a normal stressful everyday environment."
From this, the trial court concluded that M.S.'s continued involvement threatened J.W.'s
well-being.
Two of the trial court's findings regarding M.S.'s alleged failure to complete
certain case plan tasks—individual therapy and substance abuse evaluation and
treatment—are refuted by the record. The other three—child support, stable housing,
and stable income—were tasks that were impossible for M.S. to attempt to complete
until she was released from prison. Cf. D.N. v. Dep't of Children & Family Servs., 48
So. 3d 1035, 1036 (Fla. 2d DCA 2010) (holding that the trial court's finding that D.N.
was non-compliant with his case plan because he could not provide stable housing or
finances was insufficient to support the placement of D.N.'s child into a permanent
guardianship because D.N.'s failure to achieve these two objectives was due to his
incarceration during the pendency of the case). More important, and contrary to a
specific factual finding of the trial court, there is no evidence that DCF had provided
M.S. with any services with regard to J.W. either before or during her incarceration.
See § 39.6012(1)(b) (detailing DCF's responsibilities in providing services).5 Finally, as
to the trial court's finding that M.S. "did not demonstrate 'a sustained duration of sobriety
outside of residential treatment or incarceration in a normal stressful everyday
environment,' " M.S. was unable to comply with this objective because she was
incarcerated during the entire period of the case plan. However, the record does reflect
that M.S. had made significant progress in an outpatient drug treatment and
5Therecord indicates that DCF may have provided M.S. drug treatment
and parenting classes during the previous case plan for her older child, S.S.
7
rehabilitation program in which she participated while in prison. There is no reason that
M.S. could not pursue these case plan objectives upon her release from prison. For
these reasons, we conclude that the competent, substantial evidence in the record does
not support termination of M.S.'s parental rights on the ground of continued involvement
under section 39.806(1)(c).
C. Harm to the Child Arising from a Continued Relationship with an Incarcerated
Parent Under Section 39.806(1)(d)(3)
Section 39.806(1)(d)(3) permits termination based upon incarceration if
"[t]he court determines by clear and convincing evidence that continuing the parental
relationship with the incarcerated parent would be harmful to the child" and that
termination is in the child's best interest. In 2012, an amendment6 to the statute added
five factors for the trial court to consider to assist it with this determination:
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)(a)-(e).
Here, the trial court found as follows: (a) J.W. was twenty-one months old;
(b) J.W. did not have a relationship with M.S. because of her incarceration; (c) M.S. had
6Ch. 2012-178, § 15, at 2322-23, Laws of Fla.
8
not provided for J.W.'s developmental, cognitive, psychological, and/or physical needs
because of her incarceration; (d) M.S. was frequently incarcerated and unavailable to
J.W. because of her incarceration and that M.S. had a history of substance abuse
charges and convictions for armed robbery, possession of a controlled substance, and
delivery of a controlled substance; and (e) because of her incarceration, M.S. had not
established a positive or substantial relationship with J.W. or addressed her substance
abuse issues and would miss a substantial period of the child's life, including his most
important developmental years.
Based on these findings, the trial court concluded that "continuing the
parental relationship with the Mother would be harmful to the child, and, for this reason,
termination of parental rights of the incarcerated parent is in the best interest of the
child." In its order, the trial court cited only section 39.806(1)(d), but the language of the
order indicates that the trial court based its findings and conclusions on subsection
(1)(d)(3) alone, as opposed to subsections (1)(d)(1) or (1)(d)(2), which provide
alternative grounds for termination.7 However, in her initial brief on appeal, M.S. argues
only that the trial court erred in terminating her parental rights under section
39.806(1)(d)(1). But the trial court did not cite or rely on this section at all, and the
criteria for termination under subsection (1)(d)(1), which focuses on the period of time
the parent is expected to be incarcerated balanced against the child's need for a
permanent and stable home, are completely different from that of subsection (1)(d)(3),
7The trial court's order is a cut and paste from DCF's amended petition.
The petition also cites only to section 39.806(1)(d), but the language in the petition is
based on subsection (1)(d)(3) alone.
9
which requires a determination by clear and convincing evidence that continuing the
relationship with the incarcerated parent would be harmful to the child.
In their answer briefs, both DCF and the Guardian ad Litem Program
argue that M.S. has waived the issue of termination based on section 39.806(1)(d)(3)
because of her failure to argue the point in her initial brief. After M.S. was put on notice
of this critical omission, she did not move for leave to file an amended initial brief to
address the point. Under these circumstances, we agree that M.S. has waived the point
about the sufficiency of the evidence to support termination under 39.806(1)(d)(3) by
failing to address it in her initial brief.8 See City of Miami v. Steckloff, 111 So. 2d 446,
447 (Fla. 1959); Kenyon v. Kenyon, 496 So. 2d 839, 840 (Fla. 2d DCA 1986);
Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983).9
Only one ground is required for termination. S.B. v. Dep't of Children & Family Servs.,
80 So. 3d 438, 439 (Fla. 2d DCA 2012); A.H. v. Dep't of Children & Families, 63 So. 3d
8M.S. did not file a reply brief.
9If M.S. had argued the point, we would have concluded that competent,
substantial evidence supports the trial court's findings for termination under section
39.806(1)(d)(3). See Dep't of Children & Families v. J.S., 183 So. 3d 1177, 1185 (Fla.
4th DCA 2016) (holding that where an incarcerated father had no relationship with his
child, the trial court erred in finding that continuing the parental relationship would not be
contrary to the child's best interest under section 39.806(1)(d)(3)); R.M. v. Dep't of
Children & Families, 847 So. 2d 1103, 1104 (Fla. 4th DCA 2003) (holding that section
39.806(1)(d)(3) does not require proof that actual contact with the incarcerated parent
was detrimental to children and evidence that the possibility of the parent reclaiming his
children after his incarceration would be extremely detrimental to the children's mental
health was sufficient to support termination); but see C.B. v. Dep't of Children &
Families, 874 So. 2d 1246, 1252-53 (Fla. 4th DCA 2004) (holding that despite the
absence of a relationship between the mother and her child resulting from the mother's
incarceration and that giving the mother an opportunity to complete a case plan would
delay permanency for the child for at least one year, DCF had not established grounds
for termination under section 39.806(1)(d)(3)). We note that the Fourth District's
decisions in R.M. and C.B. predate the 2012 amendment to section 39.806(1)(d)(3).
10
874, 877 (Fla. 1st DCA 2011). Therefore, the insufficiency of the evidence to sustain
the other grounds asserted for termination is of no consequence. See R.S. v. Dep't of
Children & Families, 872 So. 2d 412, 413 (Fla. 4th DCA 2004).
D. Termination as in the Child's Best Interest and as the Least Restrictive Means
The trial court properly found that termination was in J.W.'s manifest best
interest under section 39.810 and that termination was the least restrictive means of
protecting J.W. from harm in accordance with Padgett v. Department of Health &
Rehabilitative Services, 577 So. 2d 565, 571 (Fla. 1991).
IV. CONCLUSION
There is no way to resolve this case that is entirely satisfactory. We are
mindful of the principle that "[p]arental rights are a 'fundamental liberty interest' that
cannot be terminated based on incarceration alone." S.B. v. Dep't of Children &
Families, 132 So. 3d 1243, 1247 (Fla. 1st DCA 2014) (quoting J.R. v. Dep't of Children
& Family Servs., 923 So. 2d 1201, 1205-06 (Fla. 2d DCA 2006)). It is only natural to
wish that M.S. could have a chance to find stability in her life, complete a case plan, and
be reunited with her son. But a reversal of the trial court's order would result in a further
delay in permanency for J.W. Moreover, M.S. has no relationship with her son. A
reunification of J.W. with M.S. would be traumatic and harmful to him after he has spent
all of the years of his early childhood development with his foster mother, who seeks to
adopt him. It is regrettable that the relatively brief period of M.S.'s incarceration began
only a few weeks after J.W.'s birth. The proximity of these events has resulted in a
situation where M.S. will lose her parental rights to J.W. Although this outcome is
unfortunate, we cannot elevate M.S.'s wish for a chance at reunification with her child
11
over J.W.'s opportunity for a secure and happy life in his current placement. The
legislative policy established in section 39.806(1)(d)(3) and our highly deferential
standard of review compel us to affirm the trial court's termination order and to remand
for further proceedings. We also affirm the order denying M.S.'s motion based on her
claim of ineffective assistance of counsel.
Affirmed.
KELLY and CRENSHAW, JJ., Concur.
12