C.D. v. Department of Children and Families, 2015 WL 848157 (Fla. 1st DCA)

Mother appealed a decision terminating her parental rights. The First District Court of Appeal (First DCA) reversed and remanded only the trial court’s ruling that termination was the least restrictive means of protecting her children from harm.

At the termination trial, Dr. Flynn, the family therapist working with mother and the children, testified that he had concerns about the Mother’s ability to care for the children but the children were not negatively effected by seeing Mother and that supervised visitation was safe for the children. The Guardian ad Litem reported that the children were bonded to their mother and that termination would not harm the children because the maternal aunt would allow contact with Mother if the aunt was permitted to adopt.

The trial court based its finding that termination was the least restrictive means of protecting the children on Mother’s lack of progress in remedying the issues that brought her children into care. Additionally, the trial court noted that the “mere availability of a potential relative placement, especially one disclosed on the eve of trial” did not mean such a placement is the least restrictive for the children. The trial court looked to the A.H. case for guidance on least restrictive means, finding that A.H. looked at the “availability of a permanent placement plus the existence of a parent child relationship plus the existence of a less restrictive alternative to termination that would guard the children from harm.” The trial court found that in the instant case “the test of A.H.” was not met because no evidence was presented as to the existence of a relationship between the children and Mother.

The First DCA found the trial court’s analysis and application of A.H. to be incorrect. First, with regard to the existence of a relationship between the children and Mother, the First DCA found that such a finding was in opposition with the testimony and another trial court finding that the children were bonded to their mother. Second, in A.H., termination was found to not be the least restrictive means of protecting the child even though there was “little or no bond” between Mother and child.

Mother argued and the First DCA agreed, that termination could not have been the least restrictive means of protecting the children when the trial court found that further contact between Mother and the children would not endanger them. The First DCA compared the incongruities in the trial court’s findings that the children would not be harmed by termination because there would be continued contact and that the children do not have a relationship with Mother but have a bond with her with findings in the G.H. case where the trial court found that termination was in the child’s best interest because the child and her parents could continue a relationship with supervision.

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