210 So. 3d 147
Fla. Dist. Ct. App.2016Background
- Mother (M.S.) had an earlier dependency case for an older child due to substance abuse; newborn J.W. was sheltered three days after birth in May 2013 and adjudicated dependent by voluntary consent.
- M.S. was arrested for armed robbery and tampering, pled guilty in December 2013, and was incarcerated for a multi-year term that overlapped the case plan period.
- DCF filed a petition in February 2015 to terminate M.S.'s parental rights to J.W. on five statutory grounds including abandonment, threat to child despite services (§39.806(1)(c)), failure to comply with case plan, and harm from continued relationship with an incarcerated parent (§39.806(1)(d)(3)).
- The trial court found all alleged grounds established by clear and convincing evidence, concluded termination was in the child’s best interest and the least restrictive means, and terminated parental rights.
- On appeal, DCF conceded that four of the five trial-court grounds lacked competent substantial evidence; the panel reviewed whether termination could be affirmed under §39.806(1)(c) or §39.806(1)(d)(3).
- The court held that evidence did not support termination under §39.806(1)(c) but, because appellant failed to brief the sufficiency challenge to §39.806(1)(d)(3), waived that argument; the panel affirmed termination based on §39.806(1)(d)(3).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination is supported under §39.806(1)(c) (continuing involvement threatens child irrespective of services) | M.S.: trial-court findings lack competent, substantial evidence; incarceration prevented completion of case-plan tasks and DCF provided no services during incarceration. | DCF: record supports threat to child from mother's conduct and failure to complete case plan. | Court: Reversed as to §39.806(1)(c); evidence insufficient to support that ground. |
| Whether termination is supported under §39.806(1)(d)(3) (continuing relationship with incarcerated parent would be harmful) | M.S.: (in initial brief) argued error under a different subsection (§39.806(1)(d)(1)), not (d)(3). | DCF & GAL: evidence supports (d)(3); trial court properly considered statutory factors. | Held: M.S. waived challenge to §39.806(1)(d)(3) by not briefing it; had she argued it, court notes competent evidence would support termination. |
| Whether termination is in the child's best interest and least restrictive means | M.S.: reunification should be allowed; incarceration alone insufficient. | DCF: termination serves child's need for permanency and protects welfare. | Held: Court affirmed that termination was in J.W.'s best interest and was the least restrictive means. |
| Whether ineffective-assistance motion required new adjudicatory hearing | M.S.: sought new hearing based on ineffective assistance of appointed counsel. | DCF: opposed. | Held: Denial of the motion affirmed without discussion. |
Key Cases Cited
- E.E.A. v. Dep't of Children & Family Servs., 846 So. 2d 1250 (Fla. 2d DCA) (standards for least restrictive means and termination findings)
- N.F. v. Dep't of Children & Family Servs., 82 So. 3d 1188 (Fla. 2d DCA) (deferential standard of review in termination cases)
- G.W.B. v. J.S.W., 658 So. 2d 961 (Fla. 1995) (any legal principle supporting termination will sustain judgment)
- R.C. v. Dep't of Children & Family Servs., 33 So. 3d 710 (Fla. 2d DCA) (presumption of correctness for clear and convincing findings)
- S.B. v. Dep't of Children & Family Servs., 132 So. 3d 1243 (Fla. 1st DCA) (parental rights are a fundamental liberty interest; incarceration alone insufficient)
- Padgett v. Dep't of Health & Rehabilitative Servs., 577 So. 2d 565 (Fla.) (least restrictive means principle in termination proceedings)