Florida Supreme Court Has Issued a New Opinion on the Scope of Least Restrictive Means

The boy comes up with ideas and having fun in the studioS.M. v. Florida Department of Children and Families
SC15-2127 (Fla. Sept. 1, 2016)
The existence of an emotional bond between the parent and the child is not a reason to deny TPR if the parent is unwilling or unable to safely assume parental responsibilities

The Florida Supreme Court has issued a new opinion on the scope of the least restrictive means showing requirements to terminate parental rights.  The specific question presented, based on a certified conflict between the Fourth District’s opinion in S.M. v. Florida Department of Children & Families, 190 So. 3d 125 (Fla. 4th DCA 2015), and the First District’s opinion in C.D. v. Florida Department of Children & Families, 164 So. 3d 40 (Fla. 1st DCA 2015), was whether, under the least restrictive means prong enunciated in Padgett, the trial court is required to consider a permanent guardianship rather than adoption in order to preserve the parent-child bond and allow the parent to have continued contact with the child, after the grounds for termination of parental rights have been established and the court has determined that reunification with the parent would be harmful to the child.  The Court held a trial court is not required to consider a permanent guardianship.

LRM is part of a constitutional due process analysis; emotional bond is considered under the statutory manifest best interests analysis.

In its brief, the Program asked the Supreme Court to adopt the Fourth District’s test, and to definitively hold that the least restrictive means test focuses on the amount of due process, if any, that must be afforded a parent before the State may file a Termination of Parental Rights (TPR) petition.  The Supreme Court’s opinion does both.  The Court held “[t]he least restrictive means prong of the termination of parental rights test is tied directly to the due process rights that must be afforded to a parent before his or her parental rights are terminated and is intended to protect the rights of both the parent and the child,” and further that “[t]he determination of the least restrictive means must be evaluated in light of the right being terminated: to be a parent to one’s child,” as the Fourth District held.   In reaching this conclusion, the court emphasized “the constitutional right to be a parent without state interference is not unlimited.” 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 Court specifically rejected the argument that an existing parent-child bond should be considered as part of the LRM test, stating  “In termination of parental rights cases, consideration of the bond between the parent and child and the best permanency decision for the child is appropriate and relevant in an analysis of the second prong of the termination of parental rights test, which requires the trial court to consider the manifest best interests of the child by evaluation of the relevant factors listed under section 39.810.   Accordingly, the Court held “[w]e approve the decision of the Fourth District in S.M. and disapprove the decision of the First District in C.D. to the extent that it could be read as prohibiting termination of parental rights if there is any emotional bond between the parent and child and there is another permanency option, such as guardianship, that would protect the child from harm.”

If reunification is not possible, adoption is the next statutorily required permanency goal.

In most cases, the parent will be given an opportunity to comply with a case plan and be reunified with their child.  See § 39.6011, Fla. Stat. (2016).  If the parent cannot succeed in complying with a case plan, and safe reunification is not possible, the next statutorily required permanency option is adoption. See § 39.621, Fla. Stat. (2016).  Only after the trial court determines that adoption or reunification would not be in the best interests of the child may it consider some other permanency goal.  This interpretation is consistent with the Legislature’s permanency goals in dependency cases, and the legislative mandate that “time is of the essence” in these proceedings.