Father appealed the termination of his parental rights based on abandonment. The Fifth Circuit Court of Appeal (Fifth DCA) reversed the termination finding the record did not support a finding of abandonment and that the evidence did not rise to a level justifying termination.
Florida Statute § 39.01 defines abandonment as “a situation in which the parent or legal custodian of a child . . . while being able, has made no significant contribution to the child’s care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both.” The Fifth DCA found the evidence supported a finding Father failed to provide any financial support for the child but the Department of Children and Families failed to establish whether the Father was able to provide any such support. Further evidence included that Father maintained contact with the child and that the child lived with her paternal aunt.
The Fifth DCA found that the record did not support a finding that Father failed to substantially comply with the case plan. Father’s case plan listed one duty, to complete a batterer’s intervention program. At the time of trial, Father had completed all but three classes. The Fifth DCA did note, however, that Father failed to start the program until after the petition for termination was filed and maintained inconsistent attendance.