A.S. v. Department of Children and Families, 2015 WL 1448507 (Fla. 4th DCA)

Father appealed termination of his parental rights. The Fourth District Court of Appeal (Fourth DCA) reversed the termination holding that the trial court erred in finding that Father abandoned his child and that termination was the least restrictive means to protect the child.

J.A. was born in September of 2012 and placed in care immediately thereafter. The Department of Children and Families filed for termination on the basis of abandonment in December 2012. Father was one of several men that Mother thought might be the child’s father. Mother did not name Father as a possible father until six months after the child’s birth, when she named him during a court hearing in February 2013. After two missed paternity tests and a missed hearing on a motion to establish paternity, Father took a paternity test in August of 2013 but did not learn he was positively identified as the father until December of 2013. Father testified that he did not reach out to the testing company himself because he thought they would contact him if he was found to be the father.  The Department did not conduct a diligent search for Father as required by Florida Statute s 39.0136(1).

In reading the statute regarding abandonment with the definition of “parent” contained in Florida Statute s. 39.01(1), which limits the term as follows: “the term does not include . . . an alleged or prospective parent, unless the parental status falls within the terms of s. 39.503(1) or s. 63.062(1),” the Fourth DCA held that Father, as a prospective parent, could not have abandoned his child prior to establishment of his paternity. The Fourth DCA found that Father’s actions after the establishment of paternity did not justify a finding that he abandoned his child by clear and convincing evidence. The testimony established that from March of 2014 when Father was first permitted visitation until the termination trial he was on pace to see his child on a weekly basis.

The Fourth DCA also found that termination of Father’s paternal rights was not the least restrictive means to protect the child from harm. In abandonment cases, the Department is not required to offer the parent a case plan with a goal of reunification but must show that the Department “made a good faith effort to rehabilitate the parent and reunite the family, such as through a current performance agreement or other such plan for the present child,” Padgett v. Dep’t of Health and Rehabilitation Services, 577 So. 2d 565, 571 (Fla. 1991), and that the parent will not benefit from court ordered services. C.A.T. v. Dep’t of Children and Families, 10 So. 3d 682, 684 (Fla. 5th DCA 2009).

In the instant case, Father was never offered a case plan or provided any services. The only testimony that the child would suffer harm if reunited with father was disputed testimony that the child returned from visits with dirty diapers and occasionally had night terrors.

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