The Department of Children and Families argued TPR should be overturned. The Guardian ad Litem disagreed and TPR was affirmed securing an opinion that pursuant to § 39.806(1)(e)2 the trial court may properly consider a parent’s non-compliance with a previous case plan when terminating parental rights based on material breach of the amended case plan

W.D. v. Dep’t of Children & Families, 2018 Fla. App. LEXIS 14315

Nearly three years after the children were removed, the trial court terminated father’s parental rights based on the material breach of his case plan which had been amended after a previous permanent guardianship placement failed. Although the Department filed and prevailed on the termination of parental rights petition, on appeal the Department argued the trial court erred in granting its petition and asked that the termination of the father’s parental rights be overturned. The Department agreed with the father that the trial court erred in considering his noncompliance with the first case plan when determining whether his rights should be terminated for material breach of the amended case plan. The Guardian ad Litem Program, who supported the petition below, continued to fight for the best interest of the children, arguing that the record supported the trial court’s determination. The Fifth DCA agreed with the Guardian ad Litem Program. The DCA held the Legislature designed Ch. 39 to prevent children such as these from languishing in fostercare and that in order to determine whether father was likely to substantially comply with the second case plan pursuant § 39.806(1)(e)2 for material breach, his history of noncompliance with his initial case plan was properly considered.

Affirmed.

Practice Tip: Trail courts must look to the totality of the circumstances when deciding whether to terminate parental rights. A history of noncompliance with case plan tasks is relevant to that determination and therefore should be considered.

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