Statewide Guardian ad Litem Program v. A.A., 2015 WL 4510417 (Fla. 5th DCA)

The Statewide Guardian ad Litem Program (GAL) and the Department of Children and Families (DCF) appealed the trial court’s Final Judgment Denying Involuntary Termination of Parental Rights and Ordering a Permanent Guardianship Case Plan. The trial court found that DCF proved statutory grounds for termination as to Mother and Father by clear and convincing evidence and that termination was in the best interest of the children. The trial court denied termination finding that it was not the least restrictive means of protecting the children from harm.

Mother’s four children were originally found dependent following an incident where Mother’s paramour physically and sexually battered Mother and physically battered the oldest child. Mother’s paramour admitted to drug use and daily drinking to the point of intoxication. There were also drug concerns regarding Mother. The children were placed with the maternal great aunt and uncle. Over the next three years, Mother maintained her relationship with her paramour and continued to use alcohol and test positive for drugs. She was inconsistent in attending family meetings and provided the children no financial support, emotional support or guidance. At the termination trial, the great aunt and uncle testified that they would adopt the children if rights were terminated and the older children expressed a desire to remain with their relatives.

The trial court noted that a psychologist testified that Mother would likely respond to treatment if she chose to seek it and although she continued to use, she did make some efforts to reduce her use. In light of that testimony, the trial court found there was no evidence that termination was the least restrictive means of protecting the children from harm. The court ordered the new permanency goal to be permanent guardianship with the great-aunt and uncle.

The Fifth District Court of Appeal (Fifth DCA) found that the trial court incorrectly suggests that the least restrictive means test cannot be met if there are any other available alternatives to termination. In Dept of Children and Families v. B.B., 824 So. 2d 1000 (Fla. 5th DCA 2002), the Fifth DCA previously rejected such an interpretation and held that “the ‘least restrictive means’ test simply requires that measures short of termination should be utilized if such measures can permit the safe re-establishment of the parent child bond.” The Fifth DCA found that it is unreasonable to prevent adoption if reunification is impossible or not in the children’s best interest.

Furthermore, adoption is the first option when reunification is not possible. In the instant case, adoption was the case plan goal. None of the parties requested a goal change to permanent guardianship and no evidence supported a goal change to permanent guardianship. Three years had passed between the family coming to the attention of the Department and the final order denying termination. One of the purposes of Chapter 39 is to ensure permanent placement as soon as possible for every child.

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