§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 termination proceedings. The trial court terminated father’s parental rights based on sections 39.806(1)(b) and (1)(e)(1) and (2), for abandonment and case plan non-compliance.

Father appealed, arguing that the Department failed to sufficiently prove abandonment. The Fourth DCA agreed and reversed the portion of the order terminating the father’s parental rights based on abandonment. In doing so, the DCA offered a detailed explanation regarding the qualifying phrase “while being able” in statutory definition of abandonment, and noted that it does not include involuntary abandonment, such as incarceration. Although a parent’s incarceration can be a factor the court considers for terminating parental rights based on abandonment, incarceration alone is insufficient.

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