Opinion
No. 1D21-3420
03-29-2022
P.B., Natural Father of J.C.T., Minor Child, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES; and Guardian Ad Litem for J.C.T., Appellees.
Ryan Thomas Truskoski, Ryan Thomas Truskoski, P.A., Orlando, for Appellant. Sarah J. Rumph, Children's Legal Services, Tallahassee, for Appellee Department of Children and Families; and Sara Goldfarb, Guardian ad Litem, Tallahassee, and Kimberly Kanoff Berman of Marshall Dennehey, Fort Lauderdale, for Appellee Guardian ad Litem.
Ryan Thomas Truskoski, Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
Sarah J. Rumph, Children's Legal Services, Tallahassee, for Appellee Department of Children and Families; and Sara Goldfarb, Guardian ad Litem, Tallahassee, and Kimberly Kanoff Berman of Marshall Dennehey, Fort Lauderdale, for Appellee Guardian ad Litem.
Tanenbaum, J.
P.B. appeals the trial court's final judgment terminating his parental rights ("TPR") as to the child, J.C.T. At the same time, he has been incarcerated since before J.C.T. was born, had not been aware that the mother was pregnant with J.C.T. when he was arrested, and has never seen nor talked to the child. P.B. is serving a prison sentence that is not expected to terminate until mid-2025 or 2026, and he still harbors doubt about whether he is the child's father in the first place. Indisputably, there is zero parental bond or relationship between P.B. and J.C.T. Why are we here, then? Well, despite there being no parent-child bond, P.B. insists (essentially) that the trial court's TPR did not afford him sufficient due process. As P.B. puts it, there were less restrictive means (like a permanent guardianship) to protect J.C.T. under the circumstances. His appeal fails for reasons we will detail in a moment. For the most part, though, P.B.'s argument for reversal misses the mark because he mistakenly understands the least-restrictive-means query to be prospective (that is, as a consideration of the relief options available to the trial court looking forward) rather than retrospective (that is, as a consideration of what efforts already have been put forth to aid the parent and child before termination was sought). The trial court engaged in the proper analysis, and its conclusion was supported by sufficient evidence. At all events, P.B.'s refusal to embrace his status as J.C.T.'s father militates against his claim for procedural backstops beyond those provided to him.
Here is an overview of what transpired below. J.C.T. was born testing positive for THC. The mother tested positive for amphetamines and methamphetamines approximately two weeks before she gave birth. P.B., meanwhile, has a criminal history involving drugs and violence. On February 24, 2020, after J.C.T. was removed from his mother's custody, the trial court sheltered J.C.T. with the maternal grandparents. J.C.T. has been with those grandparents ever since. The mother had identified P.B. as the father, so the order listed P.B. as a "putative" parent.
Months after the shelter order, P.B. appeared in open court and acknowledged paternity with respect to J.C.T. The trial court rendered a final judgment of paternity that adjudicated P.B. as J.C.T.'s "natural and legal father." P.B. did not appeal this final order. The Department of Children and Families ("DCF"), meanwhile, had offered him a case plan with reunification as a stated goal. P.B. was able to accomplish some of the tasks listed in the plan, but his incarceration impeded his ability to complete the plan within a year.
On March 11, 2021, DCF filed a petition to terminate the rights of both the mother and P.B., and on September 9, 2021, DCF filed an amended petition. DCF sought to terminate P.B.'s parental rights based on the following statutory grounds: abandonment ( section 39.806(1)(b), Florida Statutes ); failure to substantially comply with his case plan ( section 39.806(1)(e) ); and his incarceration, which would "constitute a significant portion of the child's minority" ( section 39.806(1)(d)(1) ).
At the final adjudicatory hearing on whether P.B.'s parental rights should be terminated, P.B. opened his testimony by hedging on whether he was really J.C.T.'s father, even though that fact already had been conclusively adjudicated. He referred to himself as the "putative father" and the "alleged father." He stated that "there was never no paternity established. They just believed the child may be mine." When asked whether he believed J.C.T. was his, he answered, "I asked for paternity and there was no paternity granted." P.B. did acknowledge that he previously had told the court that he was the father, but he testified that he "would like to establish paternity to be sure." P.B. also claimed that he has sent money to J.C.T., but he could not recall when he last did so or how much he sent. When asked about adoption by the maternal grandparents, P.B. testified that he was aware of that possibility, but that he would rather they just take care of the child until he gets out of prison in 2025 or 2026 and can take a test to see if he is the father. According to P.B., he "should have rights to the child" if he is the father. P.B. mentioned that he had three other children, all of whom live with their mothers, and he testified that he cannot support them like he did when he was not incarcerated. Instead, he supports them "here and there."
Based on this and other evidence presented by DCF, the sufficiency of which P.B. does not contest on appeal, the trial court determined that termination of P.B.'s parental rights was in the best interests of the child, and the court relied on the statutory grounds of abandonment and incarceration. The trial court found that termination was the least restrictive means to protect J.C.T. because DCF "made reasonable efforts to assist the parents after the child was removed from the home in 2020," and because DCF offered the father a case plan, which he could not substantially complete because of his incarceration. The trial court also noted that there was no bond between P.B. and J.C.T. to be re-established, so there was no alternative that would allow for a safe "reunification." As we said at the beginning, this least-restrictive-means determination is where P.B. focuses his appeal.
The mother failed to attend her adjudicatory hearing and was terminated by default and consent.
P.B. argues that termination was not the least restrictive means because he has not harmed the child and has not had the opportunity to be a parent due to his incarceration. According to P.B., a permanent guardianship with the maternal grandparents is the "required outcome" because it would allow him to "have a role in the child's life when he is released from prison." A permanent guardianship, not termination, is in the best interest of the child, P.B. argues. But he makes this argument even though the trial court found that termination is in the child's best interest under the statutory factors set out in section 39.810, Florida Statutes —a determination that P.B. does not contest on appeal. P.B., it seems, simply misapprehends how the least-restrictive-means query works.
There is no gainsaying that a parent has a fundamental right to raise his or her child. See State ex rel. Sparks v. Reeves , 97 So. 2d 18, 20 (Fla. 1957) (noting that "a parent has a natural Godgiven legal right to enjoy the custody, fellowship and companionship of his offspring"); cf. State ex rel. Weaver v. Hamans , 118 Fla. 230, 159 So. 31 (1935). This right, though, "is subject to the overriding principle that it is the ultimate welfare or best interest of the child which must prevail." In re Camm , 294 So. 2d 318, 320 (Fla. 1974). That means the parent's right to care for a child is subordinate to "the child's entitlement to an environment free of physical and emotional violence at the hands of his or her most trusted caretaker." Padgett v. Dep't of Health & Rehab. Servs. , 577 So. 2d 565, 570 (Fla. 1991).
To strike a constitutionally sufficient balance between these rights, the supreme court requires DCF to establish that an involuntary TPR "is the least restrictive means of protecting the child from serious harm." Id. at 571. "Least restrictive means" refers specifically to "what actions were taken by the State before filing the petition to terminate the parent's rights." S.M. v. Fla. Dep't of Child. & Fams. , 202 So. 3d 769, 778 (Fla. 2016) (emphasis supplied). Contrary to what P.B. suggests, then, the query about least restrictive means is not a forward-looking one that has the trial court consider whether it can fashion a workable arrangement short of termination that still accommodates these competing interests. Rather, it is a retrospective query that considers what DCF already did to salvage safely the parent-child relationship prior to its filing of the TPR petition.
The analysis ensures a parent receives due process—before losing his parental rights forever—by having the trial court look at whether there was something DCF could have done short of termination "that would have preserved the parent-child bond and still protected the child from harm." Id. at 780. DCF typically must demonstrate that before it sought termination, it "made a good faith effort to rehabilitate the parent and reunite the family," such as setting up a case plan for the parent that will assist in the provision of services and training. Padgett , 577 So. 2d at 571. Essentially, the question is whether DCF, before it filed the TPR petition, could have done anything further to facilitate a safe reunification of the parent and child. Ultimately, DCF must be able to prove that despite its efforts and any services that have been or could be provided, "reunification with the parent poses a substantial risk of significant harm to the child," leaving termination as the only option. Id.
The trial court in this case made a least-restrictive-means determination from the proper perspective, and there was sufficient evidence to support that determination. There was evidence that DCF made a good-faith effort at providing support to P.B. in an effort at "reunification" prior to seeking a TPR. There also was evidence to support a conclusion that there was no pathway to a safe "reunification"—again, from DCF's perspective, prior to its filing of the TPR petition.
Moreover, prior to its making a retrospective, least-restrictive-means determination, the trial court already had concluded that reunification was not in the best interest of J.C.T. and that termination was. According to the trial court, TPR would free the child up for adoption by the maternal grandparents, which would provide the child the statutorily mandated permanency and best serve the child's interests under the circumstances. Unlike the least-restrictive-means query, the factors that the trial court must consider under the aegis of the child's manifest best interests pursuant to section 39.810 are forward-looking. P.B., however, does not contest the trial court's prospective determination that TPR and adoption were best for the child.
Instead, P.B. conflates the forward-looking, manifest-best-interest query with the backward-looking, least-restrictive-means query that we just described. In turn, his argument that the trial court should have considered the permanent guardianship as a less restrictive, prospective alternative to maintain the status quo until he gets out of prison makes no sense and gives him no purchase in this appeal. Simply put, having made the manifest-best-interest determination that it did—which goes unchallenged here—the trial court was not required to consider whether there were less restrictive alternatives looking forward. See S.M. , 202 So. 3d at 772, 780–81 (indicating that the alternatives listed in section 39.621(2), Florida Statutes (including a permanent guardianship) should be considered as part of the manifest-best-interest analysis). Due process considerations certainly did not require the trial court to explore a way to delay a permanent arrangement for J.C.T. just so P.B. could have time to decide whether he wanted to establish a bond with the child at all—a decision ultimately contingent on that paternity test P.B. wants to take when he gets out of prison. See id. at 781 (explaining that the least-restrictive-means prong does not require consideration of the parent's bond with the child).
This brings us to an additional point. There is no parent-child bond between P.B. and J.C.T. to be re-established, and P.B. was equivocal on the stand about his commitment to J.C.T. At best, P.B. has a contingent interest in J.C.T., despite the fact that he was determined legally to be the child's natural father. We want to be clear here that the "least restrictive means must be evaluated in light of the right being terminated: to be a parent to one's child." Id. at 778. Before a parent seeks the benefit of the additional protective process that the least-restrictive-means query guarantees, he must, at a minimum, embrace unequivocally the singular idea of being the child's parent. Someone like P.B., who resists the mantle of "father" at an adjudicatory hearing on whether his parental rights should be terminated, cannot be heard to oppose termination on the ground that DCF did not do enough to rehabilitate and reunify such a reluctant parent. The least-restrictive-means query does not exist to protect the uncommitted, hesitant, or cagey parent, unsure about whether he wants a relationship with the child at all. In the end, the trial court acted properly by staying focused on what needed to be done to protect the interests of J.C.T., and P.B. received all the process that he was due.
AFFIRMED .
Osterhaus and Winokur, JJ., concur.