Opinion
Case Nos. 5D19-925 5D19-926
09-13-2019
FLORIDA GUARDIAN AD LITEM PROGRAM, Appellant, v. R.V. and I.G., Parents of E.V. and B.G., Children and Department of Children and Families, Appellees.
Thomasina F. Moore, Statewide Director of Appeals, and Joanna Summers Brunell, Senior Attorney, Appellate Division, of Statewide Guardian ad Litem Office, Tallahassee, for Appellant. Shari J. Wilson, Rockledge, for Appellee, R.V. Kelley Schaeffer, of Children's Legal Services, Bradenton, for Appellee, Department of Children and Families. No Appearance for Appellee, I.G.
Thomasina F. Moore, Statewide Director of Appeals, and Joanna Summers Brunell, Senior Attorney, Appellate Division, of Statewide Guardian ad Litem Office, Tallahassee, for Appellant.
Shari J. Wilson, Rockledge, for Appellee, R.V.
Kelley Schaeffer, of Children's Legal Services, Bradenton, for Appellee, Department of Children and Families.
No Appearance for Appellee, I.G.
PER CURIAM.
The Guardian ad Litem ("GAL") appeals the orders denying two petitions to terminate the parental rights ("TPR") of the mother, R.V. ("Mother"), as to her two children, B.G. and E.V. The petitions were originally filed by the Department of Children and Families ("DCF"). When DCF chose not to go forward, the GAL adopted and prosecuted the petitions through trial. The GAL asserts that the trial court erred in finding that no statutory grounds for termination had been proved and that the trial court's order is legally deficient. Because we agree that the trial court's order is legally deficient and prevents meaningful appellate review, we reverse for the trial court's reconsideration and entry of an appropriate order.
The children's father, I.G. ("Father"), stipulated that the children were dependent and he executed surrenders, waiving his right to contest the TPR as to both children. However, following the denial of the petitions as to Mother's parental rights, Father has moved to withdraw those surrenders.
The petitions alleged the following statutory grounds for terminating Mother's parental rights as to both B.G. and E.V.: (1) abandonment (§ 39.806(1)(b), Fla. Stat. (2017) ); (2) harm from continuing parental involvement irrespective of services provided (§ 39.806(1)(c), Fla. Stat.); (3) failure to substantially complete case plan in a timely fashion (§ 39.806(1)(e)(1), (3), Fla. Stat.); and (4) extensive and chronic substance abuse (§ 39.806(1)(j), Fla. Stat.).
Mother's chronic substance abuse and anger/domestic violence issues, directed primarily at Father, led to DCF sheltering B.G. when he was almost two years old, and he had been out of his parents' care for more than three years by the time of the adjudicatory hearing on the petitions. E.V. has never lived with either of his parents, as he was removed at birth after testing positive for opiates. Mother has on some occasions admitted to family members that she is a drug addict, while at other times denying any substance abuse issues.
Mother agreed to perform the tasks set forth in her original case plan and then affirmed her agreement to adhere to a case plan that was modified during a mediation conference. Indeed, Mother's signature and that of her attorney are found on the mediation agreement that modified her original case plan. The modified case plan required Mother to be evaluated for substance abuse, undergo substance abuse therapy, submit to random drug screens, complete anger management counseling, obtain stable income, and obtain stable housing.
We reject the trial court's finding that the case plan was simply a cookie-cutter, boilerplate case plan that did not consider the needs of Mother and her children because that conclusion is not supported by competent, substantial evidence.
At trial, it was agreed that Mother had completed the substance abuse evaluation and had initially begun substance abuse counseling. Conflicting evidence was presented with regard to whether Mother had completed the agreed-upon course of substance abuse counseling and whether she continues to abuse drugs. Despite Mother's claims to the contrary, competent, substantial evidence presented during trial demonstrated Mother was non-compliant with submitting to random drug screens. She repeatedly refused to participate by not providing samples, missing appointments, or refusing to come out of her room at a home. On one occasion, instead of providing a urine sample, she offered what appeared to be apple cider or vinegar. Furthermore, when she objected to the DCF field testing, she repeatedly failed to promptly report to an independent lab for testing. Finally, Mother repeatedly, though not consistently, tested positive for the use of illicit substances or drugs for which she presented no prescription.
In contrast to the trial court's repeated criticism of DCF's presumptive drug use field testing, the Florida Supreme Court has found that standard field testing has a satisfactory level of reliability. State v. Queior , 191 So. 3d 388, 393 (Fla. 2016) ; see also Bell v. State , 179 So. 3d 349, 357 (Fla. 5th DCA 2015) (noting that little training or experience appears to be required before a person can reliably administer and interpret such tests, as they "are designed to be simple to use and understand").
The trial court was presented with evidence that Mother was briefly employed, once in Florida and once in Georgia; however, there was no competent, substantial evidence that Mother had achieved the status of having stable income. If the trial court actually determined that Mother had the financial wherewithal to meaningfully contribute to the support of her children during those periods of employment, then that would be evidence that Mother abandoned her children because, "[a] finding of abandonment can be made based upon a parent's failure to support the child if the parent is able to do so." J.C. v. Dep't of Child. & Fams. , 264 So. 3d 973, 977 (Fla. 4th DCA 2019). While the evidence was not clear, it would appear that when employed, she spent her earnings on herself, as she never sent any money to be used for the benefit of her children to their caregivers. When the trial court's order is not supported by the evidence, reversal is appropriate. D.N.O. v. L.McC. , 820 So. 2d 1064,1066 (Fla. 2d DCA 2002). The trial court's order is further deficient in that there were no findings set forth regarding whether Mother had made appropriate effort to obtain employment and stable income. Dep't of Child. & Fams. v. S.H. , 734 So. 2d 1080, 1081 (Fla. 1st DCA 1999).
Mother testified that she was working with a regional college to resume online classes, which would generate money for her. It would seem that the money would come from some type of student loan, but the evidence was not clear in that regard. Mother did not claim that student loans were a substitute for achieving stable income.
During supervised visitation sessions, Mother did occasionally provide gifts and snacks for the children; however, it was not clear whether she or relatives provided the purchase money, and in any event, that was the extent of the support Mother provided. While Mother moved around quite a bit during the pendency of these cases, she did appear to find stable housing through the generosity of various relatives. As of the time of the adjudicatory hearing, Mother lived with one of her aunts who testified that she was willing to have Mother and both children live in her house on a permanent basis if they so wished.
Throughout the hearing and in its order denying the TPRs, the trial court repeatedly discussed important issues faced by various members of our society, including perceived wide-spread unemployment, lack of suitable housing, and substance abuse. The focus, however, of this hearing should have remained on whether or not Mother had complied with her agreed-upon case plan by obtaining stable employment, securing stable housing, and getting professional assistance that resulted in her no longer abusing controlled substances. Although this Court agrees with the trial court's statements that Mother had made efforts to comply with her case plan—the issue is whether she substantially complied in a timely fashion—not whether she "has made tremendous strides," as the trial court remarked in its order. "While the trial court may have been moved by the mother's professed desire to do better, her good intentions for the future do not overcome her past neglect and abandonment and her failure to complete drug treatment and other tasks contemplated by the case plan." In re D.N.O. , 820 So. 2d at 1066.
Further, the trial court found that Mother's continued involvement with the children did not threaten their physical, mental, or emotional wellbeing, because there was no evidence that Mother ever caused physical harm to either, nor was there evidence that her current living conditions are filthy, deplorable, dangerous, or otherwise uninhabitable. Additionally, the trial court applied the incorrect legal standard for neglect by looking only to Mother's expressed desire to spend more time with her children, without considering the statutory definition of neglect. The trial court erred by considering Mother's professed desire to retain her parental rights without giving serious consideration to the evidence, which showed she made little effort to perform her parental duties for nearly three years. Id.
The trial court, in its order, made inconsistent findings regarding the status of Mother's chronic substance abuse problem, stating first that there was no showing that she was addicted, then discussing how Mother's drug use and opioid addiction caused many of her other problems, and concluding with the statement that if she is a drug addict, Mother seems to be handling it rather well. Indeed, the trial court considered the fact that Mother has not fatally overdosed to be evidence that her drug abuse is not as serious as some others' addiction. So that we might properly review the issues on appeal regarding whether Mother has effectively dealt with her drug addiction, we reverse for entry of a new order, because the trial court's order contains factual findings and conclusions of law that are internally inconsistent. M.R. v. D.R. , 910 So. 2d 355, 356 (Fla. 2d DCA 2005).
The trial court also erroneously "looked past" the evidence laid before it when it concluded in its order that DCF had not done enough in terms of providing services aimed at permitting Mother and her children to be reunited. See Dep't of Child. & Fams. v. J.S. , 183 So. 3d 1177, 1185 (Fla. 4th DCA 2016). During the adjudicatory hearing, Mother admitted, and DCF personnel testified, that within one month of the original finding of dependency of the older boy, B.G., DCF had met with Mother, established a case plan, and had a therapist travel to Mother to commence and go forward for the next several months with the necessary evaluations and counseling programs. When Mother later expressed the desire or need for more effective drug counseling, DCF was in the process of arranging a specific program with a well-thought of service provider when Mother, who was already difficult to reach, moved without notice to Georgia. Mother's actions do not provide an evidentiary basis for finding that DCF did not do its part in trying to reunify Mother with her children. Therefore, we reverse and remand for entry of a corrected order with factual findings consistent with the record evidence regarding whether DCF made reasonable, good-faith efforts towards reunification prior to seeking termination of Mother's parental rights. See J.P. v. Dep't of Child. & Fams. , 183 So. 3d 1198, 1205 n.8 (Fla. 1st DCA 2016).
Mother testified that she at times had a "food stamp" phone with a 350 minute monthly plan, while at other times she had no phone. She testified that she was attending college classes online which meant she had computer and internet access; yet, she claimed that she had no email address that DCF could use to communicate with her. Her claimed transportation issues were similarly difficult to comprehend as case workers volunteered to drive her, relatives volunteered to drive her, and her maternal step-grandmother went so far as to give Mother a car and get her driver's license reinstated.
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Rather than setting forth its findings regarding any of the eleven statutory factors to consider when deciding whether termination of parental rights would be in the manifest best interests of the children, the trial court simply announced in its order that it had considered them all and found the proof wanting. That does not permit us to perform a meaningful appellate review, especially in light of the order's lack of other findings discussed above. Dep't of Child. & Fams. v. S.H ., 734 So. 2d at 1081.
Finally, given the failure to apply the appropriate legal standards and the failure to issue a sufficiently detailed order denying the petitions, it was error for the trial court to order immediate reunification of the children with Mother.
Accordingly, we reverse the trial court's order denying the GAL's petitions to terminate parental rights and the order of reunification. We remand for the trial court to consider the relevant evidence presented, together with the governing statutes, with further instruction to issue a detailed, corrected order setting forth its specific findings of fact and conclusions of law as to those issues listed above.
REVERSED AND REMANDED WITH INSTRUCTIONS.
WALLIS, EDWARDS and SASSO, JJ., concur.