FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
Nos. 1D20-3022
1D20-3693
_____________________________
A.P., mother of J.F., F.S., M.D.
and M.D., JR., minor children,
Appellant,
v.
DEPARTMENT OF CHILDREN AND
FAMILIES,
Appellee.
_____________________________
On appeal from the Circuit Court for Alachua County.
James P. Nilon, Judge.
September 2, 2021
BILBREY, J.
A.P., the mother of four minor children, appeals two final
orders entered by the trial court in this consolidated appeal from a
termination of parental rights (TPR) action. Because the trial
court properly applied the governing law to the competent,
substantial evidence presented, we affirm both orders.
The first order was entered on September 24, 2020, following
an adjudicatory hearing spanning six days and concluding August
10, 2020. See § 39.809, Fla. Stat. (2019). That first order tracked
the court’s earlier oral pronouncement after the hearing which
found two statutory grounds for termination of A.P.’s parental
rights and that TPR was the least restrictive means to protect all
four children from additional harm. The court also found TPR was
in the manifest best interests of M.D. and M.D., Jr., considering
all the elements listed in section 39.810, Florida Statutes (2019).
Yet considering the greater mental health needs of J.F. and
F.S., and the possibility that permanent placement could be
delayed by their needs, the court found the evidence insufficient to
establish that TPR was in the manifest best interests of J.F. and
F.S. Accordingly, the court terminated A.P.’s parental rights as to
M.D. and M.D., Jr., but denied termination as to J.F. and F.S.,
without prejudice to DCF to seek further proceedings. In
anticipation of such additional proceedings, the trial court directed
DCF to conduct additional “staffing” for J.F. and F.S.
The second order on appeal was entered after DCF’s motion
for rehearing following the denial of TPR as to J.F. and F.S. and
following the subsequent evidentiary hearing spanning three more
days on that motion. See Fla. R. Juv. P. 8.265. In its written order
filed in November 2020, the court reiterated its findings of the
statutory grounds and least restrictive means elements for TPR as
to J.F. and F.S. The court also found that DCF had proved on
rehearing, by clear and convincing evidence, that TPR was in these
two children’s manifest best interests. The trial court therefore
terminated A.P.’s parental rights to J.F. and F.S. on rehearing.
In her appeal of the first order (our case number 1D20-3022),
A.P. argues that the evidence was insufficient to prove either of
the statutory grounds for TPR or that TPR was the least restrictive
means to protect M.D. and M.D., Jr., from harm. In addition, A.P.
seeks reversal of the trial court’s finding TPR to be in the manifest
best interests of M.D. and M.D., Jr., and the court’s termination of
A.P.’s parental rights to those two children.
Following rehearing, A.P. then appealed the second order (our
case number 1D20-3693), asserting that the trial court failed to
timely rule on DCF’s motion for rehearing and thus rehearing was
“deemed denied.” See Fla. R. Juv. P. 8.265(b)(3). Failing this
argument, A.P. argues that the court’s order on rehearing was not
supported by any “new and material evidence” as required by rule
8.265(a)(4), Florida Rules of Juvenile Procedure. She repeats her
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challenge to the trial court’s finding the two statutory grounds for
TPR and that TPR was the least restrictive means to protect J.F.
and F.S. Finally, A.P. challenges the court’s determination on
rehearing and under section 39.810 that termination of her
parental rights to J.F. and F.S. was in these children’s manifest
best interests. We reject all of A.P.’s arguments as discussed
below.
Standard of Review
Review of evidentiary determinations in TPR cases is limited
to whether there is competent, substantial evidence to support the
trial court’s findings. Section 39.809(1) requires that to grant TPR,
the trial court must find clear and convincing evidence of:
(1) at least one of the statutory grounds for TPR;
(2) that TPR is in the children’s manifest best interests;
and
(3) that TPR is the least restrictive means of protecting
the children from harm.
B.T. v. Dep’t of Child. & Fams., 300 So. 3d 1273, 1277 (Fla. 1st
DCA 2020).
A trial court’s finding that the evidence is clear and convincing
enjoys a presumption of correctness and will be overturned only if
clearly erroneous or lacking evidentiary support. N.L. v. Fla. Dep’t
of Child. & Fam. Servs., 843 So. 2d 996, 999 (Fla. 1st DCA 2003).
The appellate court will not conduct a de novo proceeding, reweigh
the testimony presented at final hearing, or substitute its
judgment for that of the trier of fact. Dep’t of Child. & Fams. v.
A.L., 307 So. 3d 978, 982–83 (Fla. 1st DCA 2020).
Proceedings and Evidence in Common
By order entered in June 2018, all four children were taken
into DCF custody (sheltered), as allowed by section 39.402(1)(a),
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Florida Statutes (2018). At the time, J.F. was nine, F.S. was six,
M.D. was two and a half, and M.D., Jr., was eighteen months old.
The court adjudicated all four children dependent in July 2018.
DCF prepared a case plan for A.P. with a primary goal of
reunification and filed the plan that same month.
A.P. was evaluated by DCF providers and diagnosed with
various psychological conditions relating to her substance abuse,
trauma from horrific child abuse by her mother, and domestic
violence by the father of M.D. and M.D., Jr. The three older
children, J.F., F.S. and M.D., were also evaluated and diagnosed
with post-traumatic stress disorder and other trauma and anxiety-
related conditions attributed to A.P. and A.P.’s failure to protect
them. The oldest two children were the most severely affected:
J.F. had been involuntarily committed at least once, and F.S.
suffered auditory hallucinations more than once. M.D., Jr., was
too young for any diagnosis but as of the adjudicatory hearing had
been in foster care placements for over half his life.
The services provided by DCF under A.P.’s case plan led to
some success, and in February 2019, M.D. and M.D., Jr., were
returned to A.P.’s home. Following reunification, despite one child
breaking a leg and the occurrence of other concerning incidents,
DCF case workers hesitated to again remove these children in the
interests of stability.
J.F. and F.S. were returned to A.P.’s home some weeks later,
their return delayed by their serious behavioral and mental health
issues. Even though services were ongoing during this
reunification, A.P. had a positive drug test in May 2019; resumed
contact with the father of M.D. and M.D., Jr., in violation of the
case plan and a court order; and failed to provide J.F. and F.S. with
their prescribed medications. Upon DCF’s emergency shelter
petition, the court ordered the children returned to DCF’s custody
(resheltered) in June 2019.
Various counselors and other service providers continued to
work with A.P. on her case plan, as slightly modified after all the
children were resheltered in June 2019. A.P. had additional
positive drug tests during August 2019 but maintained negative
tests afterward. Yet A.P. repeatedly violated the conditions of her
supervised visitation with all four children by discussing the case
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with them; struggled to maintain her composure when the
youngest child became confused about who his mother was; and
discouraged the children from speaking to or trusting DCF
personnel. Finally, A.P. violated the court-ordered limitations on
communications in place to protect J.F. and F.S. from
unsupervised contact with her and to prevent any contact between
J.F. and abusive members of A.P.’s family.
DCF petitioned for termination of A.P.’s parental rights as to
all four children in January 2020, eighteen months after the
children were adjudicated dependent. See § 39.802, Fla. Stat.
(2019). DCF alleged sections 39.806(1)(c) and 39.806(1)(e)1.,
Florida Statutes (2019), as grounds for TPR. DCF also alleged that
TPR was the least restrictive means to protect the children and
was in the children’s manifest best interests under section 39.810.
First Statutory Ground for TPR — § 39.806(1)(c)
The trial court found the evidence clear and convincing that
A.P. engaged in conduct towards all four children showing “that
the continuing involvement of the mother in the parent-child
relationship threatens the life, safety, well-being, or physical,
mental or emotional health” of each of the four children
“irrespective of the provision of services” as set out in section
39.806(1)(c). These findings tracked the statute and are supported
by competent, substantial evidence.
The evidence presented at the multi-day adjudicatory hearing
included the testimony of nine witnesses for DCF and eleven
witnesses for A.P., including A.P. DCF’s witnesses described the
psychological diagnoses of A.P. and the three eldest children; A.P.’s
conduct towards the children, both individually and as a group
while A.P. was subject to her case plan; and the effects of A.P.’s
actions upon the children’s safety, well-being, and physical,
mental, and emotional health. The expert testimony was
consistent that while A.P. had made progress on her case plan
since the children were resheltered, a safe reunification of A.P. and
the children was impossible at the time of the adjudicatory
hearing. A.P.’s expert witness testified that although she had
never spoken to any of the children personally, her evaluation of
A.P. and review of the records in the case convinced her that with
further counseling and services, a staggered reunification of A.P.
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and the children, one by one beginning six months to a year after
the hearing, could succeed.
On appeal of this finding, A.P. argues that her evidence that
she had benefitted from the services provided by DCF and she
would continue to improve her ability to safely parent the children
with more services precluded TPR on this ground. But A.P.’s
reliance on Q.L. v. Department of Children and Families, 280 So.
3d 107 (Fla. 4th DCA 2019), is misplaced.
In Q.L., “because there was no evidence that the mother
suffered from any ‘condition,’ the Department was required to
prove that future harm to the children was likely based on her past
conduct.” 280 So. 3d at 114. In contrast, in this case, A.P. was
diagnosed with multiple psychological conditions. The trial court
had evidence that these conditions had and would continue to
hinder A.P.’s ability to control her emotions; to place the children’s
emotional needs above her own; and to set boundaries between the
children and members of A.P.’s family with histories of torturous
abuse of A.P., as well as reportedly sexual abuse of J.F. and F.S.
A.P.’s contention is that her progress with her therapy
outweighs DCF’s evidence that her past conduct and failure to
protect the children severely damaged the three older children’s
mental and emotional health and that the children continue to
suffer from the emotional trauma inflicted by A.P. But this
contention improperly requests this court to re-weigh the evidence,
which we cannot do. See J.B. v. C.S., 186 So. 3d 1142 (Fla. 1st
DCA 2016). In addition, Florida law does not require an indefinite
provision of services when a parent shows the inability to safely
reunify within a reasonable time. S.M. v. Fla. Dep’t of Child. &
Fams., 202 So. 3d 769, 782 (Fla. 2016). A.P. fails to demonstrate a
deficiency in the evidence to support the trial court’s finding the
ground for TPR under section 39.806(1)(c) for all four children,
based on A.P.’s conduct towards each of them over the course of
these proceedings.
Second Statutory Ground for TPR — § 39.806(1)(e)1.
The trial court also found the ground for TPR alleged by DCF
under section 39.806(1)(e)1. — that A.P. “failed to substantially
comply for a period of twelve months with the Case Plan after the
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shelter of the children or the adjudication of the minor children, to
the degree that further reunification efforts are without merit and
not in the best interest of” all four children. The court detailed in
the first order the specific testimony it relied in finding this
statutory ground for TPR proven as to all four children.
On appeal, A.P. argues that she had substantially complied
with her case plan, with only minor incidents of bad judgment after
the reshelter. She attributes the expiration of time for compliance
with her case plan to traumatic events in her life beyond her
control and by DCF’s scheduling of her trauma counseling only
after her drug abuse had been addressed.
Section 39.806(1)(e)1. provides that a parent’s failure to
complete a case plan within twelve months constitutes evidence of
continuing abuse unless the failure is caused by the parent’s
poverty or DCF’s failure to make reasonable efforts to reunify the
parent and children. At the time of the hearing, two years had
passed since A.P.’s initial reunification case plan was filed. There
was no evidence that A.P.’s positive drug tests, misbehavior during
supervised visits with the children, violation of contact limitations
to protect J.F. and F.S., and other acts detailed in the trial court’s
order were caused by poverty or any deficiency in DCF’s efforts to
reunify the family.
Time is of the essence for permanency of the children. See,
e.g., § 39.001(1)(h), Fla. Stat. (2019) (policy to ensure that no child
remains in foster care” more than a year); F.C. v. Dep’t of Child. &
Fams., 315 So. 3d 110, 111 (Fla. 3rd DCA 2020) (affirming TPR
upon evidence that father failed to substantially comply with case
plan after twelve months). A.P.’s position that the children should
remain in limbo even longer because of her somewhat improved
situation is against public policy and not in the children’s best
interests. See S.M., 202 So. 3d at 782 (holding that “there is a
strong policy incentive in achieving permanency for children in
care as quickly as possible” and that permanency should not be
indefinitely delayed).
A.P. fails to demonstrate the lack of clear and substantial
evidence to support the trial court’s finding section 39.806(1)(e)1.
as a ground for TPR for all four children based on A.P.’s failure to
substantially and timely comply with her case plan.
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TPR as Least Restrictive Means
The trial court found by clear and convincing evidence that
TPR was the least restrictive means to protect all four children,
applying the Florida Supreme Court’s holding in S.M. The trial
court noted that “time is of the essence and preservation of the
parental bond shall not be at the cost of a child’s future” in finding
that A.P. had completed many services but “has not complied to
the extent necessary.” The evidence was undisputed that two
years had passed since the children were first sheltered and that
A.P.’s actions led to the resheltering of the children.
Furthermore, no witness testified that the children could
currently be safely reunified with A.P. A.P.’s proposed less
restrictive means was to continue the children in foster care even
longer, while she availed herself of additional therapy and other
services for an unspecified period. But this proposal ignored all
four children’s need for permanency and long-term stability. The
older children’s serious mental health issues caused by A.P.’s
actions and the stress of uncertainty in their situations shows why
public policy favors permanence and security for the children. See
§§ 39.001(1)(h), 39.0136, Fla. Stat. (2019).
As we stated, in Department of Children & Families v. B.C.,
185 So. 3d 716, 720 (Fla. 1st DCA 2016), the least restrictive means
test does not “stand as an impenetrable barrier to achieving what
is ultimately in the child’s best interest.” Further, the “test is not
intended to preserve the parental bonds at the cost of a child’s
future.” Id. (citations omitted). And speculation of what the
Department “could have done with unlimited resources or
unlimited time” is not the least restrictive means test. J.P. v. Dep’t
of Child. & Fams., 183 So. 3d 1198, 1205 n.8.
Here, the trial court’s finding that termination of A.P.’s
parental rights the least restrictive means of protecting the
children correctly balanced A.P.’s due process rights and the public
policy in favor of permanency for the children in the dependency
system. A.P. shows no deficiency in the evidence to support the
trial court’s finding.
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Manifest Best Interests of M.D. and M.D., Jr.
Turning to the manifest best interests of M.D. and M.D., Jr.,
the trial court made particular findings under each statutory
factor listed in section 39.810(1)–(11) in the first order on appeal.
Weighing the statutory facts, the court found the evidence clear
and convincing that TPR was in the manifest best interests of both
M.D. and M.D., Jr. A.P. does not challenge any specific factor on
appeal but argues that the court improperly considered A.P.’s
ability to parent all four children rather than limiting its
determination to A.P.’s ability to parent M.D. and M.D., Jr.,
individually.
Contrary to A.P.’s position, the trial court did not base its
findings of M.D.’s and M.D., Jr.’s manifest best interests on the
mental health needs or potential difficulty placing J.F. or F.S. The
trial court discussed each of the statutory factors referring only to
M.D. and M.D., Jr., not the older children. The court recognized
that M.D. and M.D., Jr., had been placed together but not with the
older children “in five separate placements” while the case was
pending. The court clearly stated in its order that J.F. and F.S.
“are in a different position than” M.D. and M.D., Jr. The record
simply fails to support A.P.’s position that the trial court’s
determination of M.D. and M.D., Jr.’s manifest best interests
improperly rested on evidence pertaining to J.F. and F.S.
Proceedings on Rehearing as to J.F. and F.S.
A.P. claims that the trial court erred in granting rehearing as
to the issue of J.F.’s and F.S.’s manifest best interests. She bases
this claim first on the trial court not ruling on the motion for
rehearing within ten days of its filing resulting in the motion being
“deemed denied.” Fla. R. Juv. P. 8.265(b)(3). A.P. also argues that
rehearing was improper since DCF did not present “new and
material evidence” such that rehearing could have been granted.
Fla. R. Juv. P. 8.265(a)(4).
As noted above, in the September 24, 2020, order following the
first adjudicatory hearing, the trial court found the evidence
insufficient to prove that TPR was in J.F.’s and F.S.’s manifest best
interests. DCF’s motion for rehearing was filed on September 14,
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2020, after the court’s oral pronouncement but ten days before the
written order was entered. 1
The day after the motion for rehearing was filed, the trial
court considered several motions including DCF’s motion for
rehearing. While A.P. objected to DCF’s motion for rehearing as
untimely filed, she did not request an immediate ruling on the
motion. At this hearing, the court did not specifically articulate
that rehearing was granted or denied, but the court and the parties
continued to proceed as if rehearing had been granted. The court
coordinated dates with the parties for the court to hear additional
testimony on the manifest best interests issue.
When the court reconvened on September 25, 2020, the court
announced that DCF’s motion for rehearing was granted “only as
it applies to the manifest best interests” of J.F. and F.S. See Fla.
R. Juv. P. 8.265(c)(1) (stating that rehearing may be granted to all
or any of the parties on all or any of the issues; orders granting
rehearing must state specific issues to be reheard). A.P. objected,
arguing, as she argues here, that none of the evidence would be
“new and material” as required by rule 8.265(a)(4). However, A.P.
did not assert that the motion for rehearing was deemed denied at
this point under rule 8.265(b)(3). After the court instructed DCF
to limit the evidence to matters occurring “since the conclusion of
the trial,” DCF presented the testimony of its witnesses on
rehearing over several days.
A.P. fully participated in the rehearing and presented her
expert witness’ testimony on the second day of the hearing. DCF
offered rebuttal with the testimony of two more witnesses on the
third hearing date. At the end of the evidence the court orally
pronounced its ruling on rehearing — finding TPR in the manifest
best interests of J.F. and F.S. and terminating A.P.’s parental
1 Although it may seem unusual to file a motion for rehearing
before a written order has been entered, this appears to be allowed
under rule 8.265(b)(1). Rule 8.265(b)(1) permits a motion for
rehearing as soon as “immediately after the court announces its
judgment” and requires such a motion to be “within 10 days of the
entry of the order.” Regardless, that aspect of the motion for
rehearing is not challenged here.
10
rights to these children. That oral pronouncement was later
reduced to writing.
A.P. then moved to vacate the court’s order granting DCF’s
motion for rehearing and terminating her parental rights as to J.F.
and F.S. See Fla. R. Juv. P. 8.270. In that motion A.P. asserted
for the first time that the September 25th order was not timely
entered under rule 8.265(b)(3). She therefore claimed that it was
procedurally denied before the court took any evidence or rendered
its order on the merits on rehearing. A.P.’s motion to vacate was
denied based on the court’s finding that it had “effectively granted”
rehearing on September 15th during the scheduling conference
setting the matter for further proceedings. A.P. then timely filed
her notice of appeal of the order granting rehearing and
terminating her parental rights as to J.F. and F.S.
A.P.’s claim that DCF’s motion for rehearing was deemed
denied under rule 8.265(b)(3) was not preserved. See G.M. v. Dep’t
of Child. & Fams., 969 So. 2d 569, 571 (Fla. 1st DCA 2007) (holding
“possible defects in the procedural posture” of a case are “waived
and not preserved” if not “argued below”). 2 But even if this issue
was preserved for appellate review by A.P.’s motion to vacate, A.P.
fails to establish that reversal is required.
DCF’s written motion for rehearing was considered by the
trial court the day after it was filed. As mentioned, the parties and
the court proceeded as if the motion was granted by setting time
for further testimony. A.P. fully participated with counsel and
with her own witness in the hearings on rehearing, so there is no
question that she was afforded due process. Any error by the trial
court in failing to explicitly announce on the record on September
15th that partial rehearing was granted on the limited issue of the
manifest best interests of J.F. and F.S. was harmless since it was
clear to all parties that further proceedings were going to occur.
2 We also note that since no appeal had been filed when the
trial court explicitly granted rehearing on September 25, 2020,
there is no issue of the trial court lacking jurisdiction when that
order was entered. It therefore cannot be the case that the order
granting rehearing or the subsequent second order, now on appeal,
was void. See Fla. R. Juv. P. 8.270(b)(4).
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See D.M. v. Dep’t Child. & Fam. Servs., 979 So. 2d 1007, 1010 (Fla.
3d DCA 2008) (applying harmless error in an appeal following
TPR).
A.P. also challenges the order on rehearing as unsupported by
“new and material evidence” as described in rule 8.265(a)(4). A.P.
contends that DCF could have discovered this evidence before and
produced it at the adjudicatory hearing prior to the first order. The
record refutes A.P.’s claim. After complying with the court’s
direction to conduct additional “staffing” for J.F. and F.S., DCF
presented testimony on rehearing by five witnesses who described
J.F.’s and F.S.’s behaviors, mental states, and emotional
conditions after the adjudicatory hearing in early August 2020.
The evidence presented and considered by the trial court was new
and material as to these children’s manifest best interests.
A.P. fails to establish reversible error in the timing of the
court’s order on rehearing or the “new and material” character of
the evidence to support it under rule 8.265.
Manifest Best Interests of J.F. and F.S.
Finally, A.P. appeals the trial court’s determination of the
manifest best interests of J.F. and F.S. in the order entered
November 23, 2020. But A.P. does not contest specific statutory
factors addressed by the trial court under section 39.810, Florida
Statutes. Rather, A.P. argues generally that she will bond with
these children more closely than any adoptive parent could, that
these children’s mental and emotional special needs will make
placement difficult and possibly delay placement, and that A.P.’s
ability to support the children has financially improved and
stabilized since the children were resheltered.
The trial court’s order on rehearing included detailed findings
of the manifest best interests factors for J.F. and F.S. under section
39.810(1)–(11). The court specified the evidence it relied on for
each factor and assigned weight and credibility to conflicting
evidence received on rehearing. Although she does not refer to the
subsections of the statute in her briefs, A.P.’s arguments relate to
factors (2) (“ability and disposition of parent or parents to provide
child with food, clothing, medical care . . . and other material
needs”); (3) (“capacity of parent or parents to care for child to
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extent child’s safety, well-being, and physical, mental, and
emotional health will not be endangered upon child’s return
home”); (5) (“love, affection, and other emotional ties between child
and parent or parents, siblings, and other relatives, and the degree
of harm to the child from termination of parental rights”); (6)
(“likelihood of an older child remaining in long-term foster care
upon [TPR], due to emotional or behavioral problems”); and (7)
(“likelihood that the child will enter into a more stable and
permanent family relationship as a result of” TPR).
Here, A.P. essentially repeats her request that this court
reweigh the evidence on the statutory factors and decide these
factors contrary to what was found by the trial court. She asks
that we find that her improved circumstances after years of
services should outweigh the other statutory factors the trial court
relied on, including the public policy favoring permanency and
stability for dependent children. As discussed above, this we
cannot not do. See also Dep’t of Child. & Fams. v. A.L., 307 So. 3d
978, 982–83 (Fla. 1st DCA 2020).
A.P. establishes no deficiency in the evidence to support the
trial court’s determination of the manifest best interests of J.F.
and F.S. upon evaluation of the statutory factors listed in section
39.810 and as expressed in the written order on rehearing. Our
review of the record on appeal, including the transcripts of the
rehearing proceedings, revealed competent, substantial evidence
to support the trial court’s determinations of the manifest best
interests of J.F. and F.S.
Conclusion
A.P. demonstrates no deficiency in the evidence supporting
the trial court’s finding grounds for termination of A.P.’s parental
rights as to all four children, under sections 39.806(1)(c) and
39.806(1)(e)1. Likewise, A.P. establishes no error in the trial
court’s finding that TPR is the least restrictive means to protect
all four children under the circumstances of this case, and that
TPR is in the manifest best interests of M.D. and M.D., Jr., under
section 39.810, Florida Statutes. In addition, in her second appeal,
A.P. fails to establish reversible error in the trial court’s grant of
rehearing, under rule 8.265, and fails to demonstrate a deficiency
in the evidence to support the trial court’s determination of the
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manifest best interests of J.F. and F.S. upon rehearing. For these
reasons, the orders on appeal are
AFFIRMED.
LEWIS and MAKAR, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Melissa Joy Ford, Assistant Conflict Counsel, and Michael Titus,
Assistant Conflict Counsel, Office of Criminal Conflict and Civil
Regional Counsel Region One, Tallahassee, for Appellant.
Ward L. Metzger, Department of Children and Families,
Jacksonville, for Appellee.
Thomasina F. Moore, Statewide Director of Appeals, and Laura J.
Lee, Senior Attorney, Appellate Division, Statewide Guardian ad
Litem Office, Tallahassee, for Appellee.
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