The father was incarcerated after his fourth DUI and began his prison sentence in February of 2012 with a release date as early as July 14, 2015. The department based their petition solely on § 39.806(1)(d) 3., which provides:
(d) When the parent of a child is incarcerated and either:
3. The court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child and, for this reason, that termination of the parental rights of the incarcerated parent is in the best interest of the child. When determining harm, the court shall consider the following factors:
a. The age of the child.
b. The relationship between the child and the parent.
c. The nature of the parent’s current and past provision for the child’s developmental, cognitive, psychological, and physical needs.
d. The parent’s history of criminal behavior, which may include the frequency of incarceration and the unavailability of the parent to the child due to incarceration.
e. Any other factor the court deems relevant.
The First District Court of Appeal (First DCA) discussed the changes in the TPR incarceration statute in 2012. The 2012 changes to the statute called for a qualitative rather than purely quantitative analysis of the TPR incarceration statute.
The First DCA agreed with the father and overturned the trial court’s termination of his parental rights holding, “proof regarding factors (a) through (c) does not support termination of parental rights. All the children’s ages should be considered, given the objective of keeping them together. As for factor (d), under the amended statute, as under its predecessor, criminal history alone is not sufficient for termination.” The First DCA held that although the department argued the children deserved timely permanency, the most likely timely permanency will come from the father when he is released. The children were not placed together and there was testimony establishing a possibility for multiple placements for the children in the future. Finally, there was no testimony that reuniting these children with their father would be harmful to them.
The First DCA reversed the trial court’s decision terminating the father’s parental rights.