FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-4930
_____________________________
A.F., Father of K.I.S. and
A.B.-L.S., Minor Children,
Appellant,
v.
DEPARTMENT OF CHILDREN
AND FAMILIES,
Appellee.
_____________________________
On appeal from the Circuit Court for Escambia County.
Coleman Lee Robinson, Judge.
June 5, 2019
B.L. THOMAS, C.J.
In 2017, the Department of Children and Families filed an
amended petition for dependency regarding A.S., a fourteen-
month-old sheltered child. When Appellant appeared in the case
a few months later, the trial court adjudicated him the legal father
and issued an order stating that Appellant consented to the
dependency and accepted a case plan.
At a judicial review hearing, the trial court found that
Appellant had not substantially complied with his case plan, as he
tested positive in a recent urinalysis and had not engaged with
services. However, as Appellant had participated in regular
visitation with A.S., the court continued to allow Appellant
supervised visitation. The trial court made similar findings at two
later hearings.
In January 2018, the Department filed a Petition for
Termination of Parental Rights based on Appellant’s failure to
comply with his case plan and based on both parents’ failure to
achieve reunification with the child. The Department amended
the petition to add a ground related to Appellant’s incarceration,
stating that Appellant had twice been arrested for selling and
possessing drugs while the dependency action was pending.
Following an adjudicatory hearing, the trial court terminated
the parental rights of both parents. The court found that
Appellant did not obtain safe housing, get substance abuse
counseling, provide a clean urinalysis, show legal income, reach
out to his caseworker, or otherwise complete any of his case plan
tasks. The trial court also found that for most of the shelter period
Appellant was incarcerated due to conduct in direct contravention
of his case plan and that during the four months he was out of
prison, he sold and consumed drugs. Appellant challenged the
trial court’s order, arguing the Department did not prove that
termination of Appellant’s parental rights was in A.S.’s manifest
best interests and was the least restrictive means of protecting the
child.
Analysis
A judicial decision to terminate parental rights requires the
Department to prove that terminating parental rights is in the
child’s manifest best interests. C.M. v. Dep’t of Children &
Families, 953 So. 2d 547, 550 (Fla. 1st DCA 2007). Moreover,
“[g]iven the fundamental liberty interest accorded to parental
rights, the Department [has] the burden to show that the
termination of parental rights is the least restrictive means of
protecting the child from serious harm.” Id. “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[.]” J.P. v. Fla. Dep’t of
Children & Families, 183 So. 3d 1198, 1203 (Fla. 1st DCA 2016).
The trial court determines the child’s manifest best interests
by balancing eleven factors listed in section 39.810, Florida
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Statutes. State, Dep’t of Children & Families v. B.C., 185 So. 3d
716, 719 n.2 (Fla. 1st DCA 2016). “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.” J.P., 183 So. 3d at 1204. Instead, the trial court meets its
obligation by making findings that allow an appellate court to
determine whether the trial court abused its discretion. Id.
Here, the trial court concluded that termination of parental
rights was in A.S.’s manifest best interests. The court made
findings as to each statutory factor and weighed those favoring
termination of parental rights against those disfavoring
termination. * The court’s findings are supported by the following
competent, substantial evidence introduced at trial.
* The eleven factors the trial court must consider are:
(1) Any suitable permanent custody arrangement with a relative
of the child;
(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;
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Police officers testified that Appellant was found with illegal
drugs in amounts indicative of drug dealing and that he admitted
to selling drugs. A witness for the guardian ad litem program
testified that Appellant did not initiate any of his case plan tasks,
had no ability or disposition to provide for A.S.’s needs, and had no
capacity to care for A.S. without endangering the child. The
guardian ad litem testified that the child developed relationships
with substitute parental figures and recommended terminating
Appellant’s parental rights. A child welfare manager testified that
Appellant never engaged in the parenting program or infant
mental health services, despite referrals being made for him. She
stated that although Appellant was consistent with visitation, he
never reached substantial compliance with his case plan or
changed his behavior to satisfy the conditions of return. Another
case manager testified that services were available for Appellant
to progress on his case plan while incarcerated, but he did not take
advantage of any of those services.
Appellant testified that he never completed a substance-abuse
evaluation, took any parenting classes, or underwent infant
mental health services, all of which were required under his case
(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. (2017).
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plan. He admitted he tested positive for multiple illegal drugs and
had been arrested for drug dealing after A.S. was sheltered. He
admitted he continued selling and using drugs and testified that
he did not own or lease a home. When asked what progress he had
made on his case plan, Appellant said, “I didn’t even start it, sir.
Clouded judgment.” Although Appellant blamed his inability to
begin his case plan on his incarceration, he admitted he had time
to start his tasks before he was incarcerated.
Appellant argues that because he had bonded with the child,
termination of parental rights was not in the child’s best interest.
However, the trial court acknowledged that termination of
Appellant’s rights would cause emotional harm to the child but
found that the expected emotional harms were outweighed by the
dangers of returning the child to either parent. Because the trial
court properly considered all statutory factors and its findings are
supported by competent, substantial evidence, and are not
unreasonable as a matter of law, we uphold the court’s
determination on the manifest best interests of the child. See N.L.
v. Dep’t of Children & Family Servs., 843 So. 2d 996, 999 (Fla. 1st
DCA 2003).
We now review whether the termination of Appellant’s
parental rights was the least restrictive means of protecting the
child. The least restrictive means prong is ordinarily satisfied if
the Department 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.” Padgett v.
Dep’t of Health & Rehab. Servs., 577 So. 2d 565, 571 (Fla. 1991).
For example, in J.P., 183 So. 3d at 1205-06, termination of
parental rights passed the least restrictive means test because
there was ample evidence that the Department gave the appellant
time to demonstrate she could properly care for her child. By
contrast, this Court reversed in N.L., 843 So. 2d at 1003, as “[t]he
record [was] devoid of any evidence that N.L. was offered a case
plan with a goal of reunification” or evidence that the appellant
“refused to accept services.”
Appellant argues that the trial court should have assigned
A.S. to a permanent guardian, rather than terminating parental
rights. However, “[i]n spite of the name, ‘least restrictive means’
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does not mean that no alternative to termination of parental rights
is conceivable by a court.” J.P., 183 So. 3d at 1204-05. Also, the
statute provides that adoption, not permanent guardianship, is the
preferred goal if reunification is not feasible. § 39.810, Fla. Stat.
(2017); see also K.W. v. Dep’t of Children & Families, 959 So. 2d
401, 402 (Fla. 1st DCA 2007) (“[T]he possibility of a relative
placement is plainly not a reason to delay a decision to terminate
parental rights if termination is otherwise in the manifest best
interest of the child.”).
Competent, substantial testimony established that although
Appellant had several months to work on his case plan before his
incarceration, and even had services available to him while he was
incarcerated, he did not avail himself of services or comply with
the plan. He was given time and opportunity to demonstrate an
ability to properly care for his child, yet he admittedly failed to
take advantage of every opportunity.
AFFIRMED.
LEWIS and ROBERTS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
James F. Turner, Jr., Esq., James Turner Law Firm, LLC, Milton,
for Appellant.
Sarah Rumph, Children’s Legal Services, Tallahassee; Alan
Abramowitz and Thomasina F. Moore, Statewide Guardian Ad
Litem Program, Tallahassee, for Appellee.
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