C.P., THE FATHER v. DEPARTMENT OF CHILDREN AND FAMILIES

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

C.P., the father,
Appellant,

v.

DEPARTMENT OF CHILDREN AND FAMILIES and GUARDIAN AD
LITEM,
Appellees.

No. 4D21-465

[July 14, 2021]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Yael Gamm, Judge; L.T. Case No. 2018-1291 DP.

Denise E. Kistner of Law Offices of Denise E. Kistner, P.A., Fort
Lauderdale, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Carolyn Schwarz,
Assistant Attorney General, Children’s Legal Services, Fort Lauderdale, for
appellee Department of Children and Families.

Thomasina F. Moore, Statewide Director of Appeals, Rebecca L.
Bartlett, Senior Attorney, Appellate Division, Statewide Guardian ad Litem
Office, Tallahassee, for appellee Guardian ad Litem.

KLINGENSMITH, J.

C.P. (“the father”) appeals the trial court’s final judgment terminating
his parental rights to his two minor children. 1 The trial court found
grounds to terminate the father’s parental rights to one child, C.F.P.,
under sections 39.806(1)(b) (abandonment); 39.806(1)(c) (continuing
involvement threatens child’s well-being irrespective of services); and
39.806(1)(e)1. (failure to substantially comply with case plan), Florida
Statutes (2020). As to the other child, C.Y.P., the trial court only found
grounds to terminate the father’s parental rights under section

1 The mother’s appeal of the final judgment terminating her parental rights to
these two minor children was affirmed per curiam by this court. See A.W. v.
Guardian Ad Litem, 4D21-38, 2021 WL 2105428 (Fla. 4th DCA May 25, 2021).
39.806(1)(b). For the reasons set forth below, we affirm the judgment
terminating the father’s parental rights as to both children on the grounds
of abandonment under section 39.806(1)(b), but reverse the findings as to
C.F.P. based on sections 39.806(1)(c) and 39.806(1)(e)1.

“While a trial court’s decision to terminate parental rights must be
based upon clear and convincing evidence, [appellate] review is limited to
whether competent substantial evidence supports the trial court’s
judgment.” M.D. v. State, Dep’t of Children & Families, 187 So. 3d 1275,
1277 (Fla. 4th DCA 2016) (quoting J.G. v. Dep’t of Children & Families, 22
So. 3d 774, 775 (Fla. 4th DCA 2009)). “A trial court’s finding of clear and
convincing evidence is reversible only if clearly erroneous or lacking in
evidentiary support.” S.S. v. D.L., 944 So. 2d 553, 557 (Fla. 4th DCA
2007).

The State may terminate parental rights if a parent “abandon[s]” their
child. See § 39.806(1)(b), Fla. Stat. (2020). Under the relevant statute,
“abandonment” means that the parent or caregiver, “while being able, has
made no significant contribution to the child’s care and maintenance or
has failed to establish or maintain a substantial and positive relationship
with the child, or both.” § 39.01(1), Fla. Stat. (2020). To “establish or
maintain a substantial and positive relationship with the child” a parent
must make “frequent and regular contact with the child through frequent
and regular visitation or frequent and regular communication to or with
the child” and must “exercise [their] parental rights and responsibilities.”
Id. “Marginal efforts and incidental or token visits or communications are
not sufficient to establish or maintain a substantial and positive
relationship with a child.” Id.

In this case, the father has been incarcerated since June 2018 after he
was arrested on a drug charge and is serving a five-year sentence which
would last through 2023 (although he testified that he expected to be
released in June 2021). Under section 39.01(1), “[t]he qualifying phrase
‘while being able’ excludes involuntary abandonment.” B.F. v. State, Dep’t
of Children & Families, 237 So. 3d 390, 393 (Fla. 4th DCA 2018) (quoting
T.S. ex rel. D.H. v. Dep’t of Children & Families, 969 So. 2d 494, 496 (Fla.
1st DCA 2007)). “Although a parent’s incarceration can be a factor the
court considers for terminating parental rights based on abandonment,
incarceration alone is insufficient.” Id. (quoting T.S., 969 So. 2d at 496).
“[T]he parent’s efforts, or lack thereof, to assume parental duties while
incarcerated must be considered in light of the limited opportunities to
assume those duties while in prison.” Id. (quoting In re T.H., 979 So. 2d
1075, 1080 (Fla. 2d DCA 2008)).

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 The evidence showed that prior to the father’s incarceration, he was not
very involved in caring for C.Y.P. When the Department of Children and
Families (“DCF”) filed shelter and dependency petitions against the mother
in April 2018, the father did not request custody of C.Y.P., who was eight
months old at the time. From the date DCF filed the petitions against the
mother to the date of the father’s arrest two months later, the father did
not visit or speak to C.Y.P. After the father was incarcerated and C.F.P.
was born in September 2018, there was testimony that he still did not
make efforts to communicate directly with the children. Although the
father frequently inquired how the children were, he did not send letters
to the children through their advocate, and he did not call them through
their advocate or via the prison phone. After he was incarcerated, the only
time the father had contact with the children, in-person or otherwise, was
when the children’s foster parents brought them to visit him in prison a
year after his incarceration. Accordingly, competent, substantial evidence
supports the termination of the father’s parental rights to both children
under section 39.806(1)(b) for abandonment.

The father argues that the lack of relationship between him and the
children was due to his incarceration, the children’s age, and DCF’s lack
of efforts to assist him in maintaining contact with the children. However,
the evidence showed that DCF provided opportunities for the father to
maintain contact with the children, but he failed to take advantage of
them. He could have asked the advocate to send letters to the children on
his behalf or to facilitate a call with them, but he did not. See M.D., 187
So. 3d at 1277 (finding of abandonment despite father sending two letters
to his daughter during the two years he was incarcerated was supported
by competent, substantial evidence). The fact that the children were too
young to read the letters did not negate the father’s duty to send them if
that was his only means of maintaining his relationship with them while
he was in prison. See B.F., 237 So. 3d at 393 (finding that the father was
able to maintain a relationship with his two-year-old son while he was
incarcerated); T.C.S. v. State, Dep’t of Health & Rehab. Servs. (In re G.R.S.),
647 So. 2d 1025, 1028 (Fla. 4th DCA 1994) (finding the father made
attempts to maintain two-way communication between himself and his
thirteen-month-old child by communicating through the child’s
custodians).

The father also argues that his completion of parenting counseling,
individual counseling, and a substance abuse program should have been
considered before his rights were terminated. While it was laudable that
the father completed these programs, they did not negate his duty to
maintain contact with the children. See R.L. v. Dep’t of Children &
Families, 273 So. 3d 1012, 1014 (Fla. 4th DCA 2019) (“[W]hile the father

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had completed his case plan goals to the extent he was able to do so in
prison, he had sent only the one letter to J.L.”).

Although DCF successfully proved abandonment under section
39.806(1)(b), it did not prove that termination of the father’s parental
rights as to C.F.P. was warranted under section 39.806(1)(c). The record
does not reveal competent, substantial evidence supporting DCF’s
allegation that continuing the parent-child relationship threatened the
child’s well-being irrespective of services. To terminate parental rights on
that ground, “the evidence must show a parent’s past conduct or current
mental condition makes the risk of future harm to the child likely.” D.B.
v. Dep’t of Children & Families, 87 So. 3d 1279, 1282 (Fla. 4th DCA 2012).
Additionally, “there must be no reasonable basis to conclude that past
behaviors will improve.” Id. There was little evidence of the father’s past
conduct towards C.F.P. as he has been incarcerated for almost all of
C.F.P.’s life. The only evidence that DCF presented regarding the father’s
conduct towards C.F.P. was his failure to maintain contact with him. Even
if the father’s past conduct met the standard for termination, DCF “failed
to specify why it felt the father was not amenable to services.” T.M. v. Dep’t
of Children & Families, 905 So. 2d 993, 997 (Fla. 4th DCA 2005). In fact,
the evidence showed that the father was amenable to services. He
completed his required individual counseling and parenting counseling
and a voluntary substance abuse program while he was in jail. Because
he completed these programs after the detrimental past conduct occurred,
there is a reasonable basis to conclude that his conduct may improve. See
D.B., 87 So. 3d at 1282 (stating that to terminate parental rights under
this ground “there must be no reasonable basis to conclude that past
behaviors will improve”).

Additionally, DCF did not prove termination of the father’s rights to
C.F.P. was warranted under section 39.806(1)(e)1., because the record did
not show that the father failed to substantially comply with the case plan.
“‘Substantial compliance’ means that 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. (2020). “Where a court is terminating parental rights
based on a parent’s failure to comply with a case plan or a performance
agreement, it is axiomatic that the parent must have the substantial ability
to comply with the plan or agreement.” In re G.M., Jr., 71 So. 3d 924, 926
(Fla. 2d DCA 2011). When a parent is incarcerated, they typically do not
have the ability to comply with many aspects of a case plan. See id.
(stating that the father “did not have the ability to comply with his case
[plan] because of his incarceration and the Department’s failure to assist

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him”). Here, the father completed all the case plan tasks that he could
while he was in jail: individual counseling and parenting counseling. He
even completed a voluntary substance abuse program. However, the
father did not have the ability to provide proof of stable housing and stable
income. See In re G.M., Jr., 71 So. 3d at 926; In Interest of E.L.H., Jr., 687
So. 2d 924, 925 (Fla. 2d DCA 1997); see also In re R.S., 48 So. 3d 1035,
1036 (Fla. 2d DCA 2010) (noting that the father was incarcerated and
could not complete the stable housing and stable income tasks in his case
plan). It is also unclear whether the father had the ability to provide the
child support envisioned under his case plan due to his “limited
opportunities” to earn money while in jail. See B.F., 237 So. 3d at 393.

We reverse the portion of the order terminating the father’s parental
rights as to C.F.P. under sections 39.806(1)(c) and 39.806(1)(e)1. We
remand for those grounds and findings that are inconsistent with this
opinion to be stricken from the final judgment. However, we affirm the
termination of the father’s parental rights as to both children under
section 39.806(1)(b). We also affirm the findings that termination of the
father’s parental rights was in the “manifest best interests of the children,”
and that termination was the least restrictive means to protect the children
from serious harm since the father did not contest the trial court’s findings
on these issues. See E.T. v. Dep’t of Children & Families, 261 So. 3d 593,
598 (Fla. 4th DCA 2019) (failure to challenge certain grounds for
termination in an initial brief constitutes waiver of those grounds).

Affirmed in part, reversed in part, and remanded.

KUNTZ and ARTAU, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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