Clear and Convincing Evidence-Order terminating parental rights will be affirmed so long as at least one of the statutory grounds pursuant to § 39.806(1) is supported by clear and convincing evidence, termination is in the manifest best interest of the child and is the least restrictive means to protect the child from harm

K.C. v. Department of Children and Families, — So.3d —- (2018) Trial court terminated father’s parental rights pursuant to §§ 39.806(1)(b), (c) and (e)1.  Father appealed and Fifth DCA reversed as to the findings under §§ 39.806(1)(b) and (c) because these grounds were not proved by clear and convincing evidence.  However, the TPR order was […]

Competent Substantial Evidence-Trial court’s determination that child was at substantial risk of imminent harm was not supported by competent substantial evidence

C.H. v. Department of Children and Families, — So.3d —- (2018) The child was adjudicated dependent upon trial court’s finding child was at substantial risk of imminent harm after being placed in the custody of an inappropriate caregiver by the mother.  The court found that the caregiver was inappropriate because she had a prior case […]

Statute of Repose and Standing-Appeal barred by statute of repose and dismissed where biological father was not a legal parent, was not a party to the adoption below and had no standing to challenge the adoption judgment

J.G. v. State, — So.3d —- (2018) Biological father who was active in lives of his children and was participant in TPR proceedings against mother and legal father, yet failed to take steps to obtain legal parental rights, lacked standing to bring appeal of adoption order. In order adjudicating children dependent, the trial court found […]

Due Process-Parents have a due process right to be present for the manifest best interest and least restrictive means portion of proceeding for the termination of their parental rights

R.E.B., Jr. v. Department of Children and Families, — So.3d —- (2018) Trial court held two hearings regarding termination of parental rights. The first hearing considered only whether there were statutory grounds to terminate father’s parental rights. The second hearing addressed whether termination was in the children’s manifest best interest and the least restrictive means […]

Tolling of Time for Appeal-Adoption following a termination of parental rights is governed by the Florida Rules of Juvenile Procedure where a motion for rehearing does not toll the time for filing a notice of appeal

B.S. v. Department of Children and Families, — So.3d —- (2018) The issue in this case concerns the appropriate rules of procedure to be used in adoptions that follow a termination of parental right entered pursuant to Chapter 39.  Here, the Grandmother sought to appeal the trial court’s dismissal of her petition for adoption and […]

Proper Service, Failure to Appear and Constructive Consent to Dependency-Trial court correctly ruled that the mother’s presence at the shelter hearing obviated the need for service of process of the dependency petition and that mother’s failure to attend the arraignment hearing constituted a constructive consent to the adjudication of dependency

C.J.L–M. v. Department of Children and Families, — So.3d —- (2018) Mother appeared at the shelter hearing and was appointed an attorney. After the court found probable cause for removal, mother signed and was given a copy of the shelter order and notice of hearing which listed the date, time, and location of the arraignment […]

Proposed Final Order-Trial Court’s adoption of a proposed final judgment terminating parental rights is not per se reversible; rather, reversal is required only where the circumstances create an appearance that the judgment does not reflect the judge’s independent decision-making.

D.R. v. Department of Children and Families, — So.3d —- (2018), 44 Fla. L. Weekly D253 Department submitted a proposed order at the beginning of TPR trial. After the trial ended, the court adopted the proposed order in full, but added approximately one page of additional findings. Mother appealed, arguing the court failed to conduct […]

Case Plan Goals-Due process requires notice of proposed change to permanency goal and strict adherence to statutory requirements.

In Interest of T.C., — So.3d —- (2018) Mother sought certiorari review of the trial court’s order that placed two of her children in a permanent guardianship with their paternal grandparents and gave the father permanent custody of a third child. Mother argued that the trial court departed from the essential requirements of the law […]

§39.806(1)(b)-Abandonment and Termination of Parental Rights of Incarcerated Parent. Trial court erred in terminating father’s parental rights on the ground of abandonment due to incarceration.

B.F. v. State, Department of Children and Families, — So.3d —- (2018) Child was sheltered at 4 months of age. When child was two years old, the Department filed a petition to terminate father’s parental rights based upon several grounds. Father was in and out of jail for a significant portion of the dependency and […]

§39.811(1) and Order of Disposition-Dependency trial court’s findings in support of its decision to not adjudicate a child dependent, after declining to terminate parental rights of child’s father, were insufficient to permit the District Court of Appeal to conduct meaningful review, warranting reversal and remand of dependency determination.

In Interest of K.W., 234 So.3d 835 (2018) The GAL filed a petition to terminate parental rights of mother and father as to their two children, K.W.(1) and K.W.(2). The trial court terminated mother’s parental rights as to both children, but only terminated father’s parental rights to the child, K.W. (1), not to the child, […]

Expedited TPR Pursuant to §39.806(1)(c), (i), (j) and (l) and Least Restrictive Means-Least restrictive mean analysis does not require a reunification case plan in extraordinary cases enumerated in §39.806(2), Fla.Stat. (2017)

K.D. v. Department of Children and Families, 2018 WL 1769747 (Fla. 1st DCA 2018) The Department filed an expedited petition to terminate mother’s parental rights under sections 39.806(1)(c), (i), (j) and (l). Despite a decade of involvement with the Department due to mother’s chronic substance abuse, including the removal of seven other children since 2008, […]

Expedited TPR Pursuant to section 39.806(1)(m) and Least Restrictive Means-Least restrictive means analysis does not require a reunification case plan for biological father of child conceived by sexual battery

In Interest of X.W., 2018 WL 793733 (Fla. 2d DCA 2018) The GAL filed an expedited petition to terminate biological father’s parental rights based on his sexual battery of mother when he was twenty-six and she was just eleven years old, and which resulted in the conception of the child, X.W. Despite finding the GAL […]

STANDING TO CHALLENGE PATERNITY-section 742.18, Fla. Stat. (2017) does not preclude an individual from challenging a paternity determination pursuant to section 742.10(4).

In Interest of Y.R-P., — So.3d —- (2017) In a pending dependency proceeding with competing paternity claims, O.R., the biological father, filed a motion to disestablish paternity for J.R.-P., the purported father who was named as father on birth certificate. The trial court conducted an evidentiary hearing on O.R.’s motion where both DCF and the […]

DISESTABLISHINIG PATERNITY, PRIVETTE AND CHAPTER 742.18-Privette best interest inquiry applies only in contested cases where a child faces the threat of being declared illegitimate, and the legal father faces the threat of losing parental rights which he seeks to maintain. Section 742.18 of the Florida Statutes provides a mechanism by which a man may disestablish his paternity without the requirement that another putative father is willing to establish paternity.

L.G. v. Department of Children and Families, 227 So.3d 653 (2017) L.G. was never married to the mother, but he acknowledged paternity on the child’s birth certificate. During the dependency proceedings, L.G. petitioned to disestablish paternity based on newly discovered evidence-namely, a recent DNA test showing that he was not the biological father of the […]

UNPLED GROUNDS AND IMPLIED CONSENTtermination of parents’ parental rights pursuant to 39.806(1)(e) as to one child was improper since there was no adjudication of dependency and no case plan filed. DCA held unpled grounds were not tried by implied consent.

T.H. v. State, Department of Children and Families, 226 So.3d 915 (2017) The Department filed a petition to terminate Mother’s parental rights as to S.H. based on section 39.806(1)(b), (1)(c), and (1)(e) and based on section 39.806(1)(b) for Father. After the petition was filed, Mother gave birth to another child, T.D.H., who was sheltered and […]

39.521(3)(b) and 39.522(3) AND PERMANENT PLACEMENT WITH NON-OFFENDING PARENT-trial court erred by applying wrong statutory provision resulting in permanent placement of child with non-offending father without proper findings.

K.C. v. Department of Children and Families, 227 So.3d 783 (2017) Mother appealed the trial court’s order awarding permanent custody of her child to the non-offending Father by erroneously applying section 39.521(3)(b), Florida Statutes (2015), rather than section 39.522(3), although Mother had been diligently working on case plan with a goal of reunification. Section 39.521(3)(b) […]

IMPLIED CONSENT BY FAILURE TO APPEAR-mother’s failure to appear at trial to terminate her parental rights was not due to “forces or circumstances beyond [her] control”; therefore, default by consent was proper.

C.R. v. Department of Children and Families, 225 So.3d 393 (2017) Mother appealed the termination of her parental rights based on her failure to appear at trial, arguing that the trial court abused its discretion in entering a default consent (a/k/a/ implied consent by failure to appear) because she was unable to attend the trial […]

CONTEMPORANEOUS OBJECTIONS AND APPEAL-the trial court terminated the mother’s rights to her autistic teenaged son based on medical neglect and case plan noncompliance. DCA affirmed because the order was supported by the evidence and challenges were not preserved below.

E.S. v. Department of Children and Families, 2017WL4966896 (Fla. 4th DCA Nov. 1, 2017)[4D17-2183] The Fourth DCA affirmed the order terminating mother’s parental rights finding the record was replete with evidence to support the trial court’s order and that any challenges to the admission of evidence were neither preserved for appellate review, nor supported by […]

§39.806(1)(c) AND FUTILITY-termination of father’s parental rights order reversed where the Department did not offer evidence to establish that the provision of mental health and substance abuse services to father would be futile.

C.W. v. Department of Children and Families, 2017 WL 4844895 (Fla. 1st DCA Oct. 27, 2017)[1D17-2696] In another recent opinion addressing section 39.806(1)(c) as grounds for terminating parental rights, the First DCA reversed the trial court’s order terminating father’s parental rights based on the Department’s concession of error. The trial court terminated father’s parental rights […]

§39.806(1)(c) AND LEAST RESTRICTIVE MEANS-the trial court’s findings that additional services would be futile was sufficient to establish least restrictive means. Court order denying TPR reversed and case remanded for findings regarding the Manifest Best Interest factors.

R.W. v. DCF & GAL v. R.A.D. & R.W., 2017WL5041968 (Fla. 5th DCA Oct. 31, 2017) [5D17-2010, 2012, 2027, cons.] After a hearing on a petition to terminate parental rights, the trial court concluded that the Department proved grounds for termination against both parents under section 39.806(1)(c) (continuing involvement threatens, irrespective of services) and section […]

ADOPTION INTERVENTION AND BEST INTEREST OF CHILD-Transfer of custody to prospective adoptive parents under the Adoption Intervention Statute requires a best interest analysis considering all factors enumerated in section 63.082(6)(e) of the Florida Statutes.

W.K. v. Department of Children and Families, — So.3d —- (2017); 42 Fla. L. Weekly D1909, 42 Fla. L. Weekly D2043 The child was sheltered two months after birth and placed with foster parents. During the pendency of a petition to terminate parental rights, the mother executed a surrender and consent to adopt with Adoption […]

Competency: No violation of due process in conducting TPR trial against incompetent parent

A.M. v. Department of Children and Families, 2017WL3085350 (Fla. 4th DCA) In this appeal of an order terminating mother’s parental rights, the Fourth DCA extended its previous holding that conducting a dependency adjudication against an incompetent parent does not violate due process, to a termination trial where the mother’s mental health was the core issue […]

Motion for Reunification Requires an Evidentiary Hearing: Mother was entitled to an evidentiary hearing on her motion for reunification with dependent child before court granted Department of Children and Families’ motion to terminate protective services

J.G. v. Department of Children and Families, 220 So.3d 555 (2017) The Department of Children and Families filed motion to terminate protective supervision as to child, who was in the custody of her non-offending father, and the Mother filed a motion for reunification, asserting that she had completed her case plan services. Without conducting a […]

Implied Consent to Termination Petition: Trial court erred in denying motion to vacate implied consent on unique facts of the case

T.H. v. Department of Children and Families, 2017WL2960589, 3D17-727 (Fla. 3d DCA Jul. 12, 2017) At the outset of the TPR trial, the Department moved for a continuance, which the court granted. The Department then asked the court to enter an implied consent against the father because of his failure to appear after proper notice. […]

Section 39.806(1)(i) and Required Findings in Court Order: Case remanded to the trial court to make required findings that reunification would be a substantial risk to the child

L.J. v. Department of Children and Families, 220 So.3d 557 (2017) The trial court entered a final judgment terminating father’s parental rights to the child pursuant to 39.806(1)(i) on the basis that he had rights to two other children terminated. The trial court’s order included findings as to each statutory factor, discussed the manifest best […]

Case Plan Amendment: Trial court departed from the essential requirements of law when it changed case plan goal from reunification to permanent guardianship without an adequate evidentiary basis

S.C.P. v. Department of Children and Families, 220 So.3d 1290 (2017) Only a few months after accepting a reunification case plan, the court changed the goal of mother’s case plan from reunification to permanent guardianship, despite finding the mother in compliance with her case plan. Noting that the rules and statutes contemplate an evidentiary basis […]

Error for trail court to modify permanency as to father who was not present at the hearing

T.B. v. Department of Children and Families, — So.3d —- (2017) After the parents substantially complied with their case plans, the trial court reunified as to both parents and set a judicial review hearing for six months later as required by section 39.701(1)(b), Fla. Stat. (2016). Shortly after reunification, but before the hearing, the father […]

Single Parent TPR: Reversal of order terminating father’s parental rights on appeal requires reversal of order terminating mother’s parental rights as well.

A.M.B. v. Department of Children and Families, — So.3d —- (2017) Both parent’s rights were terminated below, but order terminating father’s parental rights was reversed on appeal based on concession of error by Department of Children and Families. Following precedent set by the Second DCA, the First DCA held that order terminating mother’s rights must […]

Postdisposition Change of Custody: Order effectively granting reunification quashed where dependency court failed to apply proper statutory provisions, misconstrued the evidence and findings were not supported by competent substantial evidence.

In the Interest of I.N., a child. E.N., Petitioner, v…., — So.3d —- (2017) The Second DCA reversed a trial court’s order which “effectively reunified” a child with a father who is alleged to have sexually abused the child. The DCA found that the trial court departed from the essential requirements of law by failing […]

Trial Court Order Remanded for Additional Findings

L.J. a/k/a/ M.L. v. Department of Children and Families, 2017 WL 2605106 (Fla 5th DCA) The trial court entered a final judgment terminating Father’s parental rights to his child, A.J., on the basis that father had rights to two other children terminated. The trial court’s order included findings as to each statutory factor under section […]

Modification of Visitation Order: Requires Proper Notice and a Proof of a Substantial Change in Material Circumstances and that Modification is Required to Protect the Child’s Best Interests

Florida Department of Children and Families, v. P.I., the Mother, and M.H., the Father, 2017 WL 2265372 (Fla. 3d DCA) At the shelter hearing, the court ordered no contact with the parents based on explicit findings of “egregious physical abuse” by the mother and “failure to protect” by the father. The children were placed in […]

Admission of Evidence: No Abuse of Discretion in Denying Untimely Request for Expert Witness Testimony

K.A. v. Department of Children and Families, 2017WL1494002 (Fla. 3d DCA) The mother appealed from the trial court’s order terminating her parental rights. She argued the court erred in denying her right to present expert testimony regarding her psychological issues and returning children to the father, despite alleged domestic violence incidents. The Third DCA affirmed. […]

Statute of Limitations For Negligence Claims: Appointment of GAL in Dependency Case Should Not Extinguish Children’s Causes of Action

D.H. by and through R.H. v. Adept Community Services, Inc., 2017 WL 1277741 (Fla. 2d DCA) The children were born to a developmentally disabled mother. The mother received in-home support under a Medicaid program. The services were intended to help her live on her own and care for the children. The services failed to meet […]

ICPC: Juvenile Court Not Authorized to Relinquish Jurisdiction over Children Prior to Complying with ICPC Home Study Requirement

State Department of Children and Families v. M.A., 215 So.3d 1276 (2017) The children were adjudicated dependent and placed with the maternal grandmother. The father was not a party to the dependency action. In seeking to obtain custody of his children and relocate them to his home in Indiana, the father requested a home study […]

Paternity: Biological Father of Child Born to Intact Marriage Has Extremely Limited Rights and a “Casual Interest in Fatherhood” Found Insufficient To Trigger Constitutional Protection

M.L. v. Department of Children and Families, 2017WL1718807 (Fla. 4th DCA) The putative father filed a motion to intervene in a TPR proceeding where child was born into an existing marriage. Although the putative father was named on the child’s birth certificate and he was present at the shelter hearing, he waited 18 months to […]

Procedures for Ineffective Assistance of Counsel Claims

This Supreme Court decision establishes new procedures for ineffective assistance of counsel claims for termination of parental rights proceedings. In Re: Amendments to Florida Rules of Juvenile Procedure and Florida Rule of Appellate Procedure 9.146, 2017 WL 1090564 (Fla.) In 2015, the Supreme Court established interim procedures for bringing ineffective assistance of counsel claims following […]

Case Plan Compliance

J.S. v. Department of Children and Families, 2017 WL 902184 (Fla. 5th DCA)  Mother appealed termination of her parental rights based solely upon her failure to follow a case plan.  The children were originally removed from Mother due to domestic violence.  Four months before the termination of parental rights trial, random drug tests and substance […]

Statutory Grounds for Termination of Parental Rights

If a trial court’s ruling on one of the statutory grounds for termination of parental rights is supported by clear and convincing evidence, the court’s order terminating parental rights is affirmable.  D.H. v. Department of Children and Families, 2017 WL 728063 (Fla. 5th DCA) Mother appealed termination of her parental rights.  The Fifth District Court […]

Statute of Limitations for Negligence Claims

D.H. by and through R.H. v. Adept Community Services, Inc., 2017 WL 1277741 (Fla. 2nd DCA) The Second District Court of Appeal (Second DCA) affirmed summary judgment in a negligence case filed by grandparents on behalf of their previously dependent children holding the trial court correctly found the case was initiated outside the statute of […]

Evidence – Supreme Court Declined to Adopt the Daubert Amendment

In Re: Amendments to the Florida Evidence Code, 2017 WL 6337700 (Fla.) The Supreme Court of Florida declined to adopt several legislative amendments, including an amendment (Daubert Amendment) replacing the Frye standard for admitting expert opinion evidence with the Daubert standard. The Daubert Amendment amended Florida Statutes § 90.702 and 90.704 (2012) and changed the […]

Parental Drug Use as a Basis for Dependency

M.S.v. Department of Children and Families, 2017 WL 456892 (Fla. 5th DCA)   Father appealed an adjudication order, which found his children dependent based on his recent drug-related arrests. No evidence was presented as to the circumstances of the arrests or how the arrests harmed the children. The Fifth DCA found evidence of drug use […]

Immigration – Determination of Dependency

M.P.L. v. Department of Children and Families, 2017 WL 192024 (Fla. 4th DCA) Establishing dependency based on being a child with “no parent or legal custodians capable of providing supervision and care.” § 39.01(15)(e), Fla. Stat. (2015) Judge Forst’s dissent noted the textual discrepancy between Florida Statute § 39.01(15) (e), which limits a child’s caregiver to “parents […]

Witness Testimony – Right to Confront Witness

S.D. v. Department of Children and Families, 2017 WL 52636 (Fla. 3rd DCA) Dependency proceedings are civil in nature. The constitutional right to confront witnesses does not apply. Father appealed termination of his parental rights based on his alleged lack of consent to a witness testifying via Skype, the lack of a notary to administer […]

Interpreting the S.M. Case – Least Restrictive Means

Guardian ad Litem Program v. Department of Children and Families, 2016 WL 7497280 (Fla. 5th DCA) This is the first district court case applying the least restrictive means test since it was recently clarified by the Supreme Court of Florida. S.M. v. Fla. Dep’t of Children and Families, 202 So. 3d 769, 778 (Fla. 2016). […]

M.C. v. Department of Children and Families, 2016 WL 6612173 (Fla. 3rd DCA)

This case was previously brought before the Third District Court of Appeal (Third DCA) and the court reversed termination of the Mother’s rights and directed the court to determine whether the evidence supported adjudication of dependency rather than termination. M.C. v. Department of Children and Families, 186 So. 3d 74 (Fla. 3d DCA 2016). On remand, without hearing any […]