Opinion
Case Nos. 2D02-735, 2D02-2266.
Opinion filed January 17, 2003.
Appeal from the Circuit Court for Polk County; Roger A. Alcott, Judge.
Geraldyne H. Carlton of Carlton Carlton,
P.A., Lakeland, for Appellant.
Douglas Sherman of Department of Children and Family Services, Bartow, for Appellee.
E.E.A., the natural mother, appeals two final judgments that terminated her parental rights to J.H., M.H., and D.A. We reverse.
E.E.A. is a thirty-nine-year-old woman with slight mental retardation, multiple disorders, and chronic substance abuse problems. She was determined incompetent in these proceedings, and an attorney ad litem was appointed on her behalf. E.E.A. has five children: an adult daughter, married with children of her own, who was adopted by E.E.A.'s great-uncle and his wife; an older son, living in Alabama, who was raised by his paternal grandmother; and the three minor children who are at issue here.
In 1995, E.E.A. and two of the children went to live with E.E.A.'s mother (the "Grandmother"). It does not appear that E.E.A. remained there long, but the children stayed. In 1998, E.E.A. consented to an adjudication of dependency, and all three children were placed with their Grandmother. They remained with her until the Department of Children and Family Services sent them to South Carolina in 2000. In reports filed with the court, the Department repeatedly stated that the placement with the Grandmother was appropriate, although it was not without problems. The Grandmother was credited for the children's generally good behavior, manners, and demeanor since she had essentially raised them.
When, for a variety of reasons, the South Carolina placement did not work out, all three children were brought back to Florida and placed in foster care. At the time of trial, the children had been moved several times and were not always placed together. The Grandmother learned that her grandchildren were back in Florida from someone in South Carolina. She testified that she kept getting the runaround when she called the Department. The Department did not prepare a case plan for the mother and did not do a home study on the Grandmother. The record fails to provide an explanation for the failure to conduct the home study.
Although multiple grounds were raised by the Department in its petition to terminate parental rights, the trial court acted only on section 39.806(1)(c), Florida Statutes (2001), which allows termination of parental rights "[w]hen the parent . . . engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent . . . in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services." While the clear and convincing evidence showed that E.E.A. cannot parent these children, the only apparent harm they have suffered came from their lack of stability. The lack of stability appears to be more the fault of the Department in placing the children with foster care providers rather than working with the Grandmother to return the children to her care.
Section 39.810 requires the trial court to consider a number of factors in determining the manifest best interests of the children, which is "an essential predicate for the termination of parental rights." J.T. v. Dep't of Children Family Servs. (In re T.B.), 819 So.2d 270, 273 (Fla.2d DCA 2002). The very first factor is the possibility of placement with a relative. § 39.810(1); J.T., 819 So.2d 270. The trial court held that the Grandmother was not suitable because she had not maintained a stable residence. But she had maintained an adequate residence when caring for the children, and she had downsized her living arrangements only when the children went to South Carolina. While the court questioned whether this had been a good shelter decision, the Department's position during that time was that the placement was adequate. The trial court was also concerned because the Grandmother had the burden of caring for E.E.A. But there is no evidence that this posed a significant problem before. In short, there is no clear and convincing evidence to support the trial court's determination that the Grandmother could not provide a suitable permanent custody arrangement.
"[T]he Department must prove the allegations supporting the termination of parental rights by clear and convincing evidence and must establish that termination of those rights is the least restrictive means of protecting the child from harm." R.W.W. v. State, Dep't of Children Families (In re C.W.W.), 788 So.2d 1020, 1023 (Fla.2d DCA 2001) (holding that termination was not based on clear and convincing evidence, but rather on the trial court's speculation) (citations omitted). A relative placement is a less restrictive intervention. See J.R.S. v. Dep't of Children Families (In re Z.J.S.), 787 So.2d 875, 879 (Fla.2d DCA 2001) (Northcutt, J., concurring). Accordingly, we reverse.
Reversed and remanded for further proceedings consistent with this opinion.
DAVIS and KELLY, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.