Opinion
1D22-3394
08-09-2023
Department of Children and Families, Appellant, v. M.C., the Mother of W.C., N.P., M.P., K.F., minor children, Appellee.
Sarah J. Rumph, Children's Legal Services, Tallahassee, for the Department of Children and Families. Sara Elizabeth Goldfarb, Director, and Amanda Victoria Glass, Tallahassee, for the Statewide Guardian ad Litem Office. Valarie Linnen, Jacksonville, for Appellee.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Leon County. Anthony B. Miller, Judge.
Sarah J. Rumph, Children's Legal Services, Tallahassee, for the Department of Children and Families.
Sara Elizabeth Goldfarb, Director, and Amanda Victoria Glass, Tallahassee, for the Statewide Guardian ad Litem Office.
Valarie Linnen, Jacksonville, for Appellee.
M.K. THOMAS, J.
The Department of Children and Families (the Department) appeals the denial of its petition for termination of M.C.'s, the mother's, parental rights. It asserts that the trial judge erred in denying the petition by concluding that termination was not in the manifest best interest of the children and applying impermissible factors when considering whether the termination was the least restrictive means of protecting the children from harm. We agree and reverse and remand.
The children were initially removed from the mother's care on October 5, 2018, due to evidence of physical abuse toward the children and issues of domestic violence in the home between the mother and her paramour. The children were reunified with the mother on April 24, 2020. However, within a week, the children were again removed from the home due to the mother's violation of a court order prohibiting the boyfriend from having contact with the children and another report of law enforcement being called to the home for a domestic violence incident. Another case plan was initiated, which the mother failed to substantially comply with. On August 18, 2021, the Department filed a petition to terminate the mother's parental rights.
Following a final hearing, the trial court found that the Department had established termination under section 39.806(1)(b), Florida Statutes, based on abandonment of the children, and section 39.806(1)(e)1., Florida Statutes, for failure to substantially comply with the case plan. However, the trial court denied the petition to terminate the mother's parental rights, finding termination was not in the children's manifest best interests nor the least restrictive means of protecting them from harm.
Analysis
The mother does not contest the trial court's finding that the Department established one or more grounds for termination under section 39.806. Instead, she argues that the Department failed to establish, by the requisite proof, that termination is in the children's manifest best interest and the least restrictive means of protecting them from harm.
Manifest Best Interest
Section 39.810, Florida Statutes, requires the trial court to consider the manifest best interest of the child when determining whether termination of parental rights is appropriate, including consideration of certain statutory factors. Here, the trial court denied the petition for termination of the mother's parental rights, finding it was "not in the children's Manifest Best Interest based on Section 39.810(5), Florida Statutes." Subparagraph (5) instructs courts to consider "[t]he love, affection, and other emotional ties existing between the child and 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." § 39.810(5), Fla. Stat. Under this factor, the trial court found as follows:
DCM Marshall acknowledged that the Mother cares about the children and that love, affection and emotional ties exists between the children and the Mother, but she believed that there would be no harm that would arise to the minor children from the permanent termination of parental rights of the mother and father. Jovasha Lang testified that the children appear happy with the Mother. She also testified that there would be harm to the children if the Mother's parental rights were terminated; she also testified that it would not be emotionally safe for the Children to be reunified with the Mother at this time. Finally she testified that it is in the best interests of the children that the case close in a fashion that the Mother is able to visit with the children on a regular basis ....
The trial court was also persuaded by testimony regarding the age and health of the children's guardians, and testimony that the mother visits regularly and does the children's hair and has purchased gifts for them 3-4 times per year. Lastly, the trial court gave great weight to Ms. Lang's testimony, who is the mother's therapist and supervises the mother's therapeutic visits with the children, which it summarized below:
Ms. Jovasha Lang . . . testified that the Children enjoy their visits with the Mother, and recommended visitation be stepped down to supervised. Ms. Lang also testified that after a period of disengagement, the Mother has engaged in individual counseling and is making progress .... Ms. Lang further testified that if the Mother continues to progress in her treatment she could reach the point that she is able to safely care for the Children.
Initially, we find that it was error for the trial court to consider the guardian's age and health. Section 39.810 instructs that consideration of the manifest best interest of a child "shall not include a comparison between the attributes of the parents and those of any persons providing a present or potential placement for the child." Further, no evidence was submitted indicating that the guardians' ages or health impacted their ability to care for the children. Rather, the guardians, the case manager, and the guardian ad litem, all testified that the children are well cared for in the home and that the children have a strong bond with their guardians. Regardless, as this Court has found, "[t]his should not have been part of the trial court's decision on TPR ...." Dep't of Child. &Fams. v. K.W., 277 So.3d 708, 712 (Fla. 1st DCA 2019).
Next, the trial court's remaining findings of fact are not supported by competent, substantial evidence. First, the trial court's reliance on the mother visiting the children, doing their hair, and providing some gifts as a basis to deny the petition is contrary to the trial court's finding that termination was proper because the mother had abandoned the children. Abandonment means that a parent 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. Thus, by definition, the trial court found that the mother either does not have a substantial relationship with the children or has not substantially provided for them.
The trial court also misinterpreted Ms. Lang's testimony. It found that Ms. Lang testified that the children appear happy with the mother and enjoy their visits with her. But Ms. Lang, acknowledging that missed visits can be difficult for the children, stated that once safety is reestablished, the children appear happy during their visits and when visits are consistent, the children are affectionate with the mother. Ms. Lang did not testify that the children are happy during their visits with the mother without qualification.
The trial court also found that Ms. Lang testified that the children would be harmed if parental rights were terminated. But when asked whether Ms. Lang believed the children could suffer some harm if the mother's rights were terminated, she responded:
There is always harm to children when their parents['] rights are terminated, because that's not the biological
makeup of how it's supposed to happen. So there is always trauma, even when it's maladaptive or harmful for them to return. So, yes, there will be trauma.
If we were to conclude that such a statement was enough to prove termination of parental rights was not in the manifest best interest of a child, then most, if not all, petitions for termination would fail. Additionally, Ms. Lang stated that she could not say whether there would be elevated harm in this case considering the children do not seem to expect to return to the mother's care, are not upset when the visits end, and have normalized the environment in which they see her. Thus, no evidence was submitted showing that the children in this case would suffer any harm different from that suffered in any termination of parental rights case.
Third, the trial court found that Ms. Lang testified that if the mother continues to progress in her treatment, she could reach the point where she is able to safely care for her children. Ms. Lang did testify that "it is possible" that the mother could reach the point where it would be safe for her to parent again. But Ms. Lang did not recommend reunification and testified that the mother was not emotionally safe to return the children to her care.
Lastly, the trial court found that Ms. Lang testified that it was in the children's best interest to close the case in a way that allows the mother to visit the children. But Ms. Lang testified that she did not think she could speak as to whether termination was in the children's best interest, opining that visitation is vital and children should have contact with a "safe parent." She concluded:
So I can't speak to whether her rights should be terminated or not. But sitting here today, I am testifying clinically that she is not emotionally safe for the children to return to her care.
While Ms. Lang answered in the affirmative on cross-examination when asked whether she believed it was in the children's best interest for the case to close in a way that the children could continue to see the mother on a regular basis, the trial court failed to consider Ms. Lang's other testimony and the caregivers testimony that they intended to let the mother continue to visit with the children even if her rights were terminated.
Thus, because the trial court's findings upon which it based its conclusion that termination is not in the children's manifest best interests is not supported by competent, substantial evidence, and the trial court found the remaining factors either supported termination or were neutral, the trial court erred in finding termination was not in the children's manifest best interest. Accordingly, we reverse.
Least Restrictive Means
The least restrictive means test requires action less severe than termination of parental rights if such action would allow a child to be safely reunified with a parent. K.W. v. Dep't of Child. &Fams., 959 So.2d 401, 402 (Fla. 1st DCA 2007); L.B. v. Dep't of Child. &Fams., 835 So.2d 1189, 1195 (Fla. 1st DCA 2002). The test "does not mean that no alternative to termination of parental rights is conceivable by a court." Dep't of Child. &Fams. v. A.L., 307 So.3d 978, 984 (Fla. 1st DCA 2020) (quoting J.P. v. Dep't of Child. &Fams., 183 So.3d 1198, 1204-05 (Fla. 1st DCA 2016)). A decision as to whether termination is the least restrictive means of protecting a child from harm can only be made after a full assessment of all relevant circumstances. Dep't of Child. &Fams. v. F.L., 880 So.2d 602, 608 (Fla. 2004).
To satisfy the least restrictive means test, the Department ordinarily must show it made a good faith effort to rehabilitate the parent and reunite the family. Padgett v. Dep't of Health &Rehab. Servs., 577 So.2d 565, 571 (Fla. 1991). "If reunification is not possible because the father or mother cannot or will not assume responsibility as a parent to the child, as demonstrated, for example, by the repeated failure to comply with a case plan, then termination is the least restrictive means of preventing harm." S.M. v. Fla. Dep't of Child. &Fams., 202 So.3d 769, 780 (Fla. 2016) (quoting S.M. v. Dep't of Child. &Fams., 190 So.3d 125, 129 (Fla. 4th DCA 2015)). "The test is not whether, under controlled circumstances, a parent can have contact with the child and develop an emotional bond, but whether a mother or father can be a parent to the child, with all of the responsibility and care that entails." Id. (quoting S.M. 190 So.3d at 129). To provide needed clarity, the test "is not intended to preserve a parental bond at the cost of a child's future." Id. at 778 (quoting Dep't of Child. &Fams. v. B.B., 824 So.2d 1000, 1009 (Fla. 5th DCA 2002)).
The trial court held that termination was not the least restrictive means of protecting the children from harm because "there was a more appropriate manner to close the case with Permanent Guardianship." But, this Court has held that a trial court "cannot consider 'the availability of nonadoptive placement with a relative ....'" State v. T.S., 155 So.3d 476, 477 (Fla. 1st DCA 2015) (quoting § 39.810(1), Fla. Stat.); see also In re Z.C., 88 So.3d 977, 988 (Fla. 2d DCA 2012) ("[T]he trial court erred in concluding that, because a permanent guardianship was a placement option, DCF failed to prove termination was the least restrictive means of protecting the children."); N.S. v. Dep't of Child. &Fams., 36 So.3d 776, 779 (Fla. 3d DCA 2010) ("The existence of possible placement with a relative is irrelevant to the least restrictive means test, where DCF made reasonable efforts to rehabilitate the Mother and provide services to her and her children with the goal of reuniting them as a functional family.").
As our supreme court has reiterated:
[T]he availability of relative placement does not mean that termination of the mother's parental rights is not the least restrictive means of preventing harm. Courts have frequently determined that the availability of a relative placement is not the dispositive consideration under the least restrictive means test. See In re Z.C., 88 So.3d 977 (Fla. 2d DCA 2012); S.S. v. Dep't of Children &Family Servs., 891 So.2d 1068, 1070 (Fla. 2d DCA 2004); R.L. v. Dep't of Children &Families, 955 So.2d 1240 (Fla. 5th DCA 2007); see also N.S. v. Dep't of Children &Families, 36 So.3d 776, 779 (Fla. 3d DCA 2010) (holding that "[t]he existence of possible placement with a relative is irrelevant to the least [restrictive] means test, where DCF made reasonable [but unsuccessful] efforts to rehabilitate the Mother and provide services to her and her children with the goal of reuniting them as a functional family").S.M., 202 So.3d at 780 (quoting S.M., 190 So.3d at 129).
In T.S., similar issues were addressed. The Department appealed after the trial court denied the petition for termination of parental rights, finding that it was not the least restrictive means to protect the child from harm. T.S., 155 So.3d at 477. The trial court found it unsafe for the child to be with his mother and that the permanency plan was for the aunt to adopt the child after termination. Id. However, the trial court decided it was possible for the aunt to become a permanent guardian, without any party requesting the same, and found that this possibility meant there was a measure short of termination available. Id. This Court reversed, noting section 39.810(1) prohibits consideration of "the availability of a nonadoptive placement with a relative," and remanded, instructing the trial court to reevaluate the availability of the least restrictive means without considering nonadoptive placement with a relative. Id. at 477-78.
Accordingly, the case is remanded for the trial court to reevaluate the manifest best interest and the least restrictive means test without considering the nonadoptive placement with a relative.
REVERSED and REMANDED.
LEWIS and LONG, JJ., concur.