I.Z. v. B.H.
2011 Fla. App. LEXIS 1904
Fla. Dist. Ct. App.2011Background
- DCF achieved permanency in 2007 by placing S.F. in a permanent guardianship with B.H. and R.M., with agreed ongoing contact.
- In July 2009, B.H. and R.M. petitioned to terminate I.Z.’s parental rights on abandonment, threat to wellbeing, and failure to comply with a case plan.
- Trial court terminated parental rights on all three statutory grounds after extensive testimony, though much evidence predated permanency and some was conflicting.
- I.Z. has a history of mental illness; visits with S.F. are supervised at JAFCO, varying in frequency with I.Z.’s stability.
- I.Z. was incarcerated February–November 2009 for aggravated battery; during incarceration there were no visits.
- Upon release, I.Z. could not visit due to pending termination proceedings; the child testified she wants to be adopted but could see her mother if well.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was abandonment proven under 39.806(l)(b)? | I.Z. failed to maintain a substantial relationship due to incarceration and lack of contact. | Periods of no contact were due to incarceration and pending proceedings, not lack of effort. | No; abandonment not established given circumstances and prior efforts. |
| Did conduct toward the child threaten the child’s well-being under 39.806(l)(c)? | Mother’s ongoing mental health issues show threat to wellbeing. | Mental health alone insufficient without demonstrable threatening conduct; only pre-permanency incident weighed minimal. | No; evidence insufficient to prove threat to wellbeing under this subsection. |
| Was termination proper under 39.806(l)(e) for failure to comply with a case plan? | Failure to substantially comply supports termination. | Noncompliance alone cannot establish termination; other grounds lacked sufficient support. | No; termination under this ground error because noncompliance alone not proven as abandonment/abuse. |
| Was the trial court required to weigh pre-permanency conduct differently than post-permanency conduct? | Incidents before permanency should support termination if relevant. | Pre-permanency conduct has limited relevance after permanency was established. | Precedent favored limited weight; no-rediscovery of pre-permanency incident supported reversal. |
| Did the child’s preference and adoption context affect the outcome? | Child’s desire for adoption should support termination if well-being requires it. | Child’s preference must be weighed against stability and ability to maintain contact with mother if well. | Not dispositive; court reversed due to lack of clear support on grounds. |
Key Cases Cited
- C.M. v. Dep’t of Children & Family Servs., 854 So.2d 777 (Fla. 4th DCA 2003) (two-step termination standard; best interests and least restrictive means)
- In re D.A., 846 So.2d 1250 (Fla. 2d DCA 2003) (services provided or offered; least restrictive means)
- Colluci v. State Dep’t of Health & Rehab. Servs., 664 So.2d 1142 (Fla. 4th DCA 1995) (failure to comply with case plan alone insufficient for termination)
- R.W. v. State Dep’t of Health & Rehab. Servs., 495 So.2d 133 (Fla. 1986) (abuse or neglect requires clear and convincing evidence)
- T.G. v. Department of Children & Families, 8 So.3d 1198 (Fla. 4th DCA 2009) (distinguishes ongoing contact vs long-term sporadic visitation)