A.H. v. Department of Children and Families, 144 So. 3d 662 (Fla. 1st DCA 2014)

Mother appealed termination of her parental rights arguing that the court’s findings that that she abandoned her child and that termination was the least restrictive means of protecting the child were erroneous. The First District Court of Appeal (First DCA) reversed termination solely on the issue that the trial court failed to find that termination was the least restrictive means of protecting the child from harm.

In May 2011, the child was taken into the Department of Children and Families’ (the department) custody and placed in foster care. Approximately one year later, the trial court gave foster mother permanent guardianship of the child.   A year and a half after the entry of guardianship, in September 2014, Mother filed a petition to reopen the matter. The department opposed the Mother’s motion but the court reopened the case for the “sole purpose of [the department] filing a petition for termination of parental rights.”

In order to terminate parental rights, the department must prove the existence of statutory grounds, that termination is in the best interest of the child and that termination is the least restrictive means of protecting the child from harm, citing A.H. v. Department of Children and Family Services, 85 So. 3d 1213-1215-16 (Fla. 1st DCA 2012). If the department does not prove there are no measures short of termination that could be used to protect the child, “than termination cannot pass constitutional muster.” See J.B. v. Department of Children and Families, 107 So. 3d 1196, 1202 (Fla. 1st DCA 2013).

The First DCA held evidence presented at the trial court established permanent guardianship was in place for the child. There was no evidence presented that Mother’s contact with the child pursuant to the guardianship terms created a risk of harm to the child. The child was bonded to the guardian, enjoyed visits with his biological family, and desired a continued relationship with his mother.

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