Third District Court of Appeal
State of Florida
Opinion filed March 17, 2021.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D20-1289
Lower Tribunal No. 18-15287
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L.C.A., the Mother,
Appellant,
vs.
Department of Children and Families, et al.,
Appellees.
An appeal from the Circuit Court for Miami-Dade County, Jason E.
Dimitris, Judge.
Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third
Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for appellant.
Karla Perkins, for appellee Department of Children and Families;
Thomasina F. Moore and Laura J. Lee (Tallahassee), for appellee Guardian
ad Litem Program.
Before FERNANDEZ, LOGUE, and MILLER, JJ.
MILLER, J.
In termination proceedings, our legal system is charged with balancing
the natural, constitutionally protected right to parent against the government
interest in protecting the child from harm. These competing concerns
present special challenges in cases involving intimate partner violence.
Rather than furnishing adequate resources, our institutional response has
often failed to account for the difficulties encountered by victims attempting
to gain independence from their abusers. Concluding this is one such case,
we reverse.
BACKGROUND
The child at issue, L.A.C.A., was sheltered after her mother, L.C.A.,
sustained a violent attack at the hands of her husband, the father. The father
was jailed, domestic violence charges were filed, and the criminal court
imposed a stay away order, requiring the father to abstain from contact with
both the mother and L.A.C.A. L.A.C.A. was placed in the custody of her
maternal grandmother, and, on July 23, 2018, adjudicated dependent
pursuant to a mediated settlement agreement. Under the terms of the
stipulation, the mother conceded she was a nonviolent victim of domestic
abuse.
In early January 2019, drawing upon the conclusions rendered in an
earlier psychological evaluation, the trial court approved a case plan with a
2
stated primary goal of reunification and a concurrent goal of adoption. The
terms of the plan required the mother to avail herself of various therapeutic
treatments, including an evidence-based parenting program, trauma-
informed individual therapy with a domestic violence component, substance
abuse, psychiatric and psychological evaluations, along with ensuing
treatment recommendations, individual therapy, parenting and anger
management classes, medication management, random urinalysis testing
three times per week, and a parent-child observation upon the completion of
therapy. Notably, the case plan did not restrict contact between the mother
and father.
Upon the father’s release from jail, the parents rekindled their
relationship. 1 They experienced severe economic difficulties and were
temporarily homeless, cohabiting for a time in a car. Predictably, this living
situation engendered instability. Law enforcement officers arrested the
father for violating the stay away order and the mother for loitering and
prowling. The mother declined to cooperate in the domestic violence
1
The father was diagnosed with substance abuse and mental health
disorders and assigned his own case plan. He was inconsistent in his
therapies, rejected inpatient treatment, failed to appear for several urinalysis
appointments, tested positive on one occasion and furnished diluted
samples on two others.
3
proceedings against the father, the stay away order was dissolved, and the
State abandoned the prosecution.
The couple then obtained steady employment in the construction
industry and acquired an apartment together. They began regularly visiting
and contributing to the support of L.A.C.A. Meanwhile, the Department of
Children and Families failed to generate several referrals for the mother.
This inaction, combined with the mother’s economic struggles and lack of
communication with the case manager, precipitated significant delays in the
projected treatment plan.
In June of 2019, the Department assigned a new case manager and
offered the mother an extension and modification, assigning services
identical to those required under the original case plan. Referrals ensued,
and she eventually completed all required tasks. By all accounts, the mother
made positive strides. Her substance abuse disorder remained in remission,
and she was medication compliant and engaged in services.
Despite this progress, in late 2019, the Department modified the stated
goal to solely reflect adoption. It then filed a petition to terminate the rights
of both parents. In support of the petition, it relied upon a failure to
substantially comply with the case plan for twelve months after the child was
adjudicated dependent, in violation of section 39.806(1)(e)(1), Florida
4
Statutes, and a failure to substantially comply with the case plan while the
child had been in care for any twelve of the last twenty-two months, in
violation of section 39.806(1)(e)(3), Florida Statues.
The lower tribunal conducted a joint remote trial by videoconference.
As relevant to the mother, several experts, along with a multitude of other
witnesses, testified. Of note, a psychiatrist, forensic psychologist, and
clinical social worker all opined the mother was responsive to treatment and
a strong candidate for reunification. One expert testified the mother
expressed her intent to prioritize the child over the father, and should the
mother move in with the maternal grandmother, the reunification process
could begin immediately. Another opined the mother had gained insight into
her circumstances, developed the capacity to articulate and identify abusive
behaviors and cycles, and improved her ability to communicate in an
assertive, rather than argumentative, manner, and recommended the goal of
the case plan be changed from adoption to reunification. Yet, a third expert
testified the mother said she was “willing to do anything” to regain custody of
the child and the mother had fully educated herself on domestic violence.
The Department’s own witness, a psychiatrist, denied the mother
appeared determined to be with the father and further suggested an updated
psychological evaluation, along with a parent-child observation, was
5
appropriate. Various other witnesses testified mother and child
demonstrated a close and loving bond, and the mother, herself, presented
no threat of harm to L.A.C.A. However, some suspected the mother was
subject to ongoing abuse, as evidenced by various physical injuries, and
nearly all were concerned with the lack of progress exhibited by the father.
Finally, although the mother readily admitted she had previously been
abused, she denied continuing violence, contending she suffered various
injuries while performing manual labor in the course of her employment. She
testified there were no restrictions on her visitation with her other two
children, and, if faced with such a choice, she would choose L.A.C.A. over
her husband “in a hurry.” 2
At the conclusion of the trial, the Department conceded the mother
completed all tasks required under the case plan and remained actively
engaged in therapy, seeking additional services even after the goal of the
plan was changed to adoption. It contended, however, the mother lacked
sufficient insight into the circumstances precipitating the dependency
proceedings, as evidenced by her failure to sever her relationship with the
2
L.A.C.A. and the other two children are fathered by different men. The
latter two, neither of whom are the subject of dependency or termination
proceedings, reside with their father.
6
father. The court agreed and terminated the rights of the mother. The instant
appeal ensued.
STANDARD OF REVIEW
In termination of parental rights cases, the Department bears a clear
and convincing burden of proof. D.P. v. Dep’t of Child. & Fam. Servs. 930
So. 2d 798, 801 (Fla. 3d DCA 2006); see C.G. v. Dep’t of Child. & Fams., 67
So. 3d 1141, 1143 (Fla. 3d DCA 2011) (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.”)
(citation omitted); T.P. v. Dep’t of Child. & Fam. Servs., 935 So. 2d 621, 624
(Fla. 3d DCA 2006) (“The standard of review for challenges to the sufficiency
of the evidence supporting a termination of parental rights is whether the trial
court's order is supported by substantial competent evidence.”) (citations
omitted). However, we acknowledge our review of the determination by the
trial court is “highly deferential.”
ANALYSIS
The fundamental right of parents to procreate and make decisions
regarding “the care, custody, and control of their children,” Troxel v.
Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49 (2000)
(citations omitted), is “recognized by both the Florida Constitution and the
7
United States Constitution.” D.M.T. v. T.M.H., 129 So. 3d 320, 334 (Fla.
2013). This right “does not evaporate simply because they have not been
model parents.” Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388,
1395, 71 L. Ed. 2d 599 (1982). However, it is not absolute but “subject to
the overriding principle that it is the ultimate welfare or best interest of the
child which must prevail.” In re Camm, 294 So. 2d 318, 320 (Fla. 1974)
(citations omitted).
Reconciling these basic principles, under Florida law, to terminate
parental rights, the Department “must prove by clear and convincing
evidence: ‘(1) the existence of one of the statutory grounds set forth in
Chapter 39; (2) that termination is in the best interest of the child; and (3)
that termination is the least restrictive means of protecting the child from
harm.’” A.H. v. Dep’t of Child. & Fams., 144 So. 3d 662, 665 (Fla. 1st DCA
2014) (citation omitted).
Section 39.806, Florida Statutes, provides an exhaustive list of
grounds for termination. Although there can be little doubt that domestic
violence constitutes a significant public health issue and witnessing such
violence has a deleterious effect on many children, proof a parent has
8
experienced intimate partner abuse is not among them. 3 See generally §
39.806, Fla. Stat. Perhaps any such reference was sagaciously omitted, as
to allow for termination based solely upon such a showing of victimization
would constitute a tacit endorsement of the heavily discredited notion the
behavior of the abuser rests within the control of the victim. 4 Thus, often in
such circumstances, prospective abuse or neglect is alleged. § 39.806(1)(c),
Fla. Stat.
In this case, the petition for termination did not allege prospective
abuse or neglect. Instead, it relied upon a failure to substantially comply with
the assigned case plan. Firstly, the Department alleged the child continued
to be abused, neglected, or abandoned by the mother, as evidenced by the
3
“[I]f the Legislature wishes as a matter of public policy to qualify a particular
child rearing risk as a ground for adjudication, we are confident that it is able
to do so.” L.P. v. Dep’t of Child. & Fam. Servs., 962 So. 2d 980, 982 (Fla.
3d DCA 2007); see State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830,
833 (Fla. 1993) (If the scope of a statute is to be expanded, “then the
Legislature, rather than th[e] [c]ourt[s], is the proper party to do so.”).
4
See Heidi A. White, Refusing to Blame the Victim for the Aftermath of
Domestic Violence Nicholson v. Williams is a Step in the Right Direction, 41
Fam. Ct. Rev. 527, 528 (2003) (“A victim of domestic violence faces an uphill
battle, often with very few resources. . . . The victim is not in control of the
situation; the abuser is."); Scott H. Hughes, Elizabeth’s Story: Exploring
Power Imbalances in Divorce Mediation, 8 Geo. J. Legal Ethics 553, 576
n.86 (1995) (“While still in the relationship, [often] victims of abuse fail to
recognize that they lack control over their abusers[’] behavior.”) (citation
omitted).
9
fact the mother had not substantially complied with the case plan for a period
of twelve months following the placement of the child into care. §
39.806(1)(e)(1), Fla. Stat. Secondly, it alleged the child had been in care for
any twelve of the last twenty-two months, and the mother had failed to
substantially comply with the case plan so as to permit reunification. §
39.806(1)(e)(3), Fla. Stat. Under either provision, nonperformance
occasioned by a “lack of financial resources or the failure of the [D]epartment
to make reasonable efforts to reunify,” is excused. § 39.806(1)(e)(1), Fla.
Stat.; § 39.806(1)(e)(3), Fla. Stat.
Here, although the original case plan was approved shortly after the
child was adjudicated dependent, the undisputed testimony established the
initial case manager failed to timely provide referrals for treatment. 5 Further,
economic hardships endured by the mother created transportation issues.
These factors culminated in a nearly one-year delay in treatment.
Despite these early challenges, as commendably conceded by the
Department, the mother completed all assigned tasks and continued to
actively engage in therapy until the goal of the case plan was abruptly
5
The initial case manager did not testify at trial.
10
changed. 6 Nonetheless, the Department urges the mother’s failure to gain
insight into her circumstances supports the statutory grounds alleged.
Under Florida law, “[a] parent’s rights cannot be terminated solely on
the imprecise notion that a parent failed to ‘gain insight’ from services
received.” Q.L. v. Dep’t of Child. & Fams., 280 So. 3d 107, 116 (Fla. 4th
DCA 2019) (citation omitted). Instead, substantial compliance turns on
whether “the circumstances which caused the creation of the case plan have
been significantly remedied to the extent that the well-being and safety of the
child will not be endangered upon the child’s remaining with or being
returned to the child’s parent.” § 39.01(84), Fla. Stat.
Recognizing “that most families desire to be competent caregivers and
providers for their children and that children achieve their greatest potential
when families are able to support and nurture the growth and development
of their children,” § 39.001(1)(b), Fla. Stat., the Florida Legislature has
endowed the Department with the responsibility of developing a case plan
6
Invoking estoppel, the mother further argues the Department’s formulation
of a case plan requiring the child to remain in care beyond the twelve-month
statutory ceiling creates an inescapable paradox, as she had but two
choices: (1) reject the terms, and in doing so, decline the stated goal of
reunification, ensuring a fast-tracked adoption; or (2) consent to the terms,
proverbially sealing her own fate by supplying an automatic basis for
termination. The contours of our decision today render it unnecessary to
address the merits of this argument.
11
“designed to improve the conditions in the home and aid in maintaining the
child in the home, facilitate the child's safe return to the home, ensure proper
care of the child, or facilitate the child's permanent placement.” §
39.6012(1)(a), Fla. Stat. To that end, the “case plan must be written simply,”
§ 39.6011(2), Fla. Stat., with clear objectives, describing “each of the tasks
with which the parent must comply and the services to be provided to the
parent.” § 39.6012(1)(b), Fla. Stat.
Here, none of the case plans advanced by the Department contained
any restriction on contact between the parents. Further, the mother testified
that if required to make such a choice, she would unhesitatingly select the
child over the father. This testimony was buttressed by her prior statements
to the evaluating experts and the refusal by the Department’s own expert to
endorse the notion the mother was determined to be with the father.
It is well-established that “extricating oneself from an abusive
relationship can pose an extremely difficult hurdle for victims of domestic
violence.” State in Interest of L.M., 453 P.3d 651, 653-54 (Utah Ct. App.
2019). In this vein, the victim “might have been isolated from [his or] her
family by the abuser, [he or] she may not be able to afford to go, or [he or]
12
she may realize that leaving is more dangerous than staying.” 7 Weiand v.
State, 732 So. 2d 1044, 1054 (Fla. 1999) (citation omitted); see Ethan
Breneman Lauer, Housing and Domestic Abuse Victims: Three Proposals
for Reform in Minnesota, 15 Law & Ineq. 471, 483 (1997) (Victims of
domestic abuse “face a Sisyphean task in leaving the abusive home or
relationship.”). Yet, here, the Department never issued the mother an
ultimatum to either sever the relationship or forfeit her parental status. In the
absence of such clear direction, we, as was the trial court, are left to
speculate as to whether the mother would indeed choose the child “in a
hurry.”
7
“[T]he most dangerous time for a survivor is when they leave the abusive
partner; 75% of domestic violence related homicides occur upon separation
and there is a 75% increase of violence upon separation for at least two
years.” Center for Relationship Abuse Awareness, Barriers to Leaving an
Abusive Relationship, http://stoprelationshipabuse.org/educated/barriers-to-
leaving-an-abusive-relationship/ (last visited March 16, 2021). Further,
the idea of simply leaving an abuser [oversimplifies] an incredibly
complex situation, particularly when children are involved . . .
Moreover, involving law enforcement and obtaining a protective
order, or leaving the abuser for a shelter, does not always
address a battered woman's needs or ensure safety. Battered
women are likely to be killed when they seek help or leave their
abusive relationship. As a result, many battered women are
“afraid to leave, or worse, stay or return to their abusers thinking
they have a better chance of controlling the level of violence
while they are with them.”
Jacqueline Mabatah, Blaming the Victim? The Intersections of Race,
Domestic Violence, and Child Neglect Laws, 8 Geo. J.L. & Mod. Critical Race
Persp. 355, 370 (2016) (citation omitted).
13
Further, although the lower tribunal found additional services would
prove futile, the mother continued to progress during her therapy. No
witnesses, save the case manager and the guardian ad litem, neither of
whom were therapeutic professionals, voiced the opinion that reunification
remained elusive. See S.S. v. D.L., 944 So. 2d 553, 558 (Fla. 4th DCA 2007)
(“We recognize that the guardian ad litem testified that S.S. was beyond
rehabilitation. However, that opinion, which may yet turn out to be correct,
was not expert.”). Instead, the opposite was true. All experts continually
involved in the mother’s care opined she had advanced considerably,
additional improvement was possible, and safe reunification remained both
viable and reasonably foreseeable. Indeed, the Department’s own expert
testified an updated mental health evaluation and parent-child observation
were in order.
Finally, the Department failed to establish no measures short of
termination could be used to protect the child from harm. A.H., 144 So. 3d
at 665 (citation omitted). As was presciently acknowledged by our sister
court recently in a similar context, “the least restrictive means of protecting
the child[] would have been for [the Department] to assist [the mother], the
victim of domestic violence, in gaining an injunction against the [father] under
Chapter 39 (if necessary),” and offering services for her to achieve
14
independence from her abuser, including those designed to facilitate the
relocation process. T.B. v. Dep’t of Child. & Fams., 299 So. 3d 1073, 1080
(Fla. 4th DCA 2020).
In conclusion, here, the record established the mother completed her
assigned tasks and demonstrated an amenability to further services, and
expert testimony supported the proposition that reunification was not
untenable, but, instead plausible. Thus, the findings below do not withstand
either our scrutiny or constitutional muster. 8 See C.A.T. v. Dep’t of Child. &
Fams., 10 So. 3d 682, 684 (Fla. 5th DCA 2009) (“[I]n order to establish that
termination is the least restrictive means, [the Department] must show that
the parent will not benefit from court ordered services.”) (citations omitted);
In re D.L.H., 990 So. 2d 1267, 1273 (Fla. 2d DCA 2008) (“Because there was
no evidence that the [mother] would not benefit from court-ordered services,
the trial court erred in concluding that the termination of the [mother’s]
parental rights was the least restrictive means of protecting [the child].”),
superseded by statute on other grounds § 39.806(1)(f), Fla. Stat.
Accordingly, we reverse the order under review and remand this cause
to the trial court for continuation of the child's dependency status, without
8
Because the evidence failed to sufficiently demonstrate statutory grounds
or least restrictive means, we decline to address the findings relating to the
best interests of the child.
15
prejudice to the Department to reinstitute termination proceedings, if
appropriate, at such time as it is evident that the Department is able to meet
“its burden to present clear and convincing evidence of a statutory ground
for terminating parental rights, along with clear and convincing evidence that
terminating parental rights is [the least restrictive means of protecting the
child from harm and] in the best interests of the child.” N.L. v. Dep’t of Child.
& Fam. Servs., 843 So. 2d 996, 999 (Fla. 1st DCA 2003) (citation omitted).
Reversed and remanded.
16