§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
39.806(1)(l) (three or more removals caused by parent), and against the mother
under section 39.806(1)(j) (chronic substance abuse), of the Florida Statutes (2017).
However, the court denied the TPR petition based on failure to satisfy the least
restrictive means test, and adjudicated the children dependent. On appeal, the Fifth
DCA found the trial court misconstrued the least restrictive means test, specifically as it
applied to section 39.806(1)(c).

After recounting the trial court’s factual findings about the parents’ lengthy history with
the Department, the prior provision of six case plans to the mother and four to the
father, and the repeated findings that additional services would be futile as to these
parents, the DCA held that the trial court’s legal conclusion that the least restrictive
means test required the parents be given a case plan was inconsistent with its findings
that there was no reasonable basis to believe the parents would improve, and was
contrary to Chapter 39 and prevailing case law.

The DCA recognized that while least restrictive means ordinarily requires the provision
of a reunification case plan, no case plan is required where, as here, the trial court
determines that termination is proper pursuant to section 39.806(1)(c), in addition to
other subsections listed in § 39.806(2), Fla. Stat. (2017). The DCA concluded that that
termination in this case, without the use of a case plan, was the least restrictive means
to protect the children and remanded the case for manifest best interest findings.

Practice Tip: In its opinion, the DCA essentially adopted the least restrictive means
argument advanced by the GAL and concluded that where the Department (petitioner)
proves grounds pursuant to 39.806(1)(c), they thereby prove that termination is the
least restrictive means to protect the children from serious harm.

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