B.K. v Department of Children and Families, 2015 WL 1652761 (Fla. 4th DCA)

Father appealed termination of his parental rights. He alleged that his incarceration did not warrant termination as it was not for a significant portion of the child’s life. He further argued that termination was not the least restrictive means of preventing harm to the child.

At the time of the termination hearing, Father’s child was almost six years old. She had been in foster care for the first year and a half of her life, placed with her mother for two years, removed and placed back in foster care, and three months later placed with her two half-siblings in a pre-adoptive foster home. Father was incarcerated her entire life and did not anticipate release until 2017.

The Fourth District Court of Appeal (Fourth DCA) examined Florida Statute  s. 39.806(1)(d)(1), which provides ground for termination of incarcerated parents. The section was amended in 2012. The amendment changed a ground for termination when the period of time for which the parent is expected to be incarcerated will constitute a “substantial portion” of the child’s minority to “a significant portion” of the child’s minority. The Statute also requires that the court must consider the period of time of incarceration starting the date of actual incarceration, the child’s age and the child’s need for a permanent and stable home. The Fourth DCA cited to B.C. v. Florida Department of Children and Families, 887 So. 2d 1046, 1053 (Fla. 2004), which held the state must also show clear and convincing evidence that reunification with the parent poses a significant risk of harm and that termination is the least restrictive means to protect the child from harm.

The Fourth DCA found that the fact that Father will ultimately have been incarcerated for almost 50% of the child’s life, the child’s young age, and the remaining time left of Father’s incarceration before he would be available to take custody of the child was competent, substantial evidence that weighted in favor of termination and on the actual effect of incarceration on the parent-child relationship.

The Fourth DCA turned next to the manifest best interest analysis of termination as set forth in Florida Statute s. 39.810. In the instant case, there was no relative placement available; Father’s incarceration prevented him from meeting the child’s needs; the child had no bond with her father and did not know who he was; the child was doing well in her placement; the child was placed with her siblings; the child was bonded to her foster parents and in a pre-adoptive home; and the child was not at an age where continuing in long-term foster care was appropriate. Although the Fourth DCA found Father’s desire to remain in his child’s life and his attempts to maintain contact with his child admirable, the Fourth DCA found that it did not “trump the need to establish permanency and stability in S.C.’s life.”

Finally the Fourth DCA examined whether termination of parental rights was the least restrictive means to protect the child from harm. The Fourth DCA held that termination was the least restrictive means of protecting the child “from the harm of continued instability in her life” because the child was bonded with her caregivers and there was no other permanent custody arrangement available.

Although the Fourth DCA did uphold termination, the case was remanded to the trial court to consider whether an order for post termination contact with Father is in the child’s best interest pursuant to Florida Statute s. 39.811(7)(b).

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