In Re GM, Jr.
71 So. 3d 924
| Fla. Dist. Ct. App. | 2011Background
- G.M. appeals a trial court order terminating his parental rights to his son, G.M., Jr.
- The trial court found failure to complete case plan tasks and abandonment; the Department and GAL concede termination error.
- G.M. is incarcerated for an extended period during the case and was not provided with his case plan or assistance to comply.
- Seven case managers did not communicate with G.M. or supply the case plan; his signature line on the plan was blank.
- G.M. attempted to participate: transferred facilities for parenting class, sent letters and photos, and sought information about the child’s status; the Department’s responses were limited.
- Court reverses termination of parental rights, remanding for further proceedings while noting the child remains dependent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination based on failure to comply with the case plan is supported by clear and convincing evidence. | G.M. argues he could not comply due to incarceration and Department failures to provide a plan or assistance. | Department contends failure to complete the case plan demonstrates noncompliance justifying termination. | Not supported; termination reversed due to lack of reasonable reunification efforts and inability to comply. |
| Whether incarceration precludes a finding of abandonment as a matter of law. | G.M. communicated with the child and sought information; incarceration should be considered with limited opportunities. | Department argues incarceration is not dispositive and can support abandonment if coupled with other facts. | Incarceration is a factor, not a per se abandonment; the record shows G.M. communicated and sought involvement, defeating abandonment. |
| Whether the trial court's termination should be reversed and the matter remanded due to evidentiary and procedural deficiencies. | G.M. maintained efforts to engage and was not provided a plan; termination lacks substantial support. | Department asserts termination is proper on failure to comply and abandonment grounds. | Termination reversed and remanded for further proceedings. |
Key Cases Cited
- J.R. v. Dep't of Children & Family Servs., 923 So.2d 1201 (Fla. 2d DCA 2006) (parents have a fundamental liberty interest in child custody)
- E.E.A. v. Dep't of Children & Family Servs., 846 So.2d 1250 (Fla. 2d DCA 2003) (clear and convincing evidence required for termination)
- R.C. v. Dep't of Children & Family Servs., 33 So.3d 710 (Fla. 2d DCA 2010) (review for clear error and evidentiary support)
- W.L. v. Dep't of Children & Family Servs., 15 So.3d 866 (Fla. 2d DCA 2009) (nonservice and lack of reunification efforts invalidates termination)
- J.R. v. Department of Children & Family Servs., 9 So.3d 707 (Fla. 2d DCA 2009) (incarcerated father not automatically abandoned when case plan absent)
- T.H. v. Dep't of Children & Family Servs., 979 So.2d 1075 (Fla. 2d DCA 2008) (incarceration considered with limited opportunities to fulfill duties)
- Wirsing v. Dep't of Health & Rehabilitative Servs., 498 So.2d 946 (Fla. 1986) (incarceration considerations in parental duties)
- C.C. v. Dep't of Children & Family Servs., 854 So.2d 720 (Fla. 2d DCA 2003) (reunification efforts required; missteps by department warrant reversal)