B.K., The Father v. Department of Children And Families
166 So. 3d 866
| Fla. Dist. Ct. App. | 2015Background
- Child S.C. born Oct. 2008; sheltered days later after mother tested positive for drugs and an STD; paternity confirmed to B.K.
- B.K. maintained written contact from prison and arranged two supervised visits in 2009; convicted March 2009 of drug offenses and sentenced to consecutive terms with projected release in early 2017.
- S.C. spent infancy in foster care, was reunified with mother (until 2010), then removed again in 2013; placed with foster family with her half-siblings in Sept. 2013; foster family willing to adopt all three.
- Department filed to terminate parental rights (TPR) as to B.K. solely under §39.806(1)(d)1. (incarceration constituting a significant portion of minority); final hearing July 2014.
- Evidence: B.K.’s sentence, guardian ad litem and foster mother testimony about child’s stability and bonding with foster family, limited contact between B.K. and S.C. (letters, one 2014 phone call), and no financial support; trial court found significant incarceration portion, lack of father–child bond, and termination was least restrictive means.
- Trial court terminated B.K.’s parental rights; appellate court affirmed but remanded to consider whether post-TPR contact orders might be appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether B.K. will be incarcerated for a "significant portion" of the child’s minority under §39.806(1)(d)1 | B.K.: incarceration should not justify TPR because he has maintained contact and will be released in 2017; statute shouldn’t be applied to punish | DCF: measured from date of incarceration, B.K. will have been imprisoned for nearly half of S.C.’s minority, supporting the statutory ground | Court: affirmed — competent substantial evidence that incarceration will be a significant portion of minority |
| Whether termination is in the manifest best interests of the child under §39.810 | B.K.: termination is not in S.C.’s best interest because he has corresponded, wants reunification post-release, and has demonstrated parental concern | DCF: child is bonded to foster family, placement is stable, removal would harm continuity and permanency would be frustrated without TPR | Court: affirmed — factors (stability, bond with foster family, no suitable relatives, age) support manifest best interests finding |
| Whether termination is the least restrictive means to protect the child (Padgett test) | B.K.: his prison efforts (letters, calls) and willingness to complete case plan show less restrictive measures could preserve relationship | DCF: little or no parent–child bond exists to re-establish; preserving parental rights would prolong foster care and impede permanency | Court: affirmed — where no real bond exists, termination can be least restrictive; remanded to consider limited contact orders post-TPR |
| Whether trial court erred in evidentiary rulings affecting reversal | B.K.: exclusion of some testimony about case-plan efforts was prejudicial | DCF: main basis for TPR was incarceration length and child’s best interests, so any error was harmless | Court: any evidentiary error was not reversible given incarceration-based rationale and record support |
Key Cases Cited
- Padgett v. Dep’t of Health Rehab. Servs., 577 So. 2d 565 (Fla. 1991) (parental liberty interest and requirement that termination be least restrictive means to protect child)
- B.C. v. Florida Dep’t of Children & Families, 887 So. 2d 1046 (Fla. 2004) (incarceration ground must consider actual effect on parent–child relationship; timing of measurement previously focused on post-petition incarceration)
- In Interest of B.W., 498 So. 2d 946 (Fla. 1986) (incarcerated parent’s efforts to parent must be measured against limited opportunity while imprisoned)
- J.C. v. K.K., 64 So. 3d 157 (Fla. 4th DCA 2011) (child’s interests outweigh a father’s late attempt to parent when reunion would require prolonged foster care)
- In re K.W., 891 So. 2d 1068 (Fla. 2d DCA 2004) (least restrictive means does not require preserving a parental bond where little or no bond exists)