An earlier opinion in this case was issued by the First District Court of Appeal (First DCA) on February 27, 2015. (This earlier opinion was summarized in the last Legal Briefs Newsletter.) Following motions from the Department and the Guardian ad Litem for Clarification, Rehearing and Rehearing En Banc, the First DCA withdrew its prior opinion and issued this new opinion.
Mother appealed a final order terminating her parental rights. The First DCA reversed only as to the trial court’s ruling that termination was the least restrictive means of protecting the children from harm.
At the termination trial, Dr. Flynn, the family therapist working with mother and the children, testified that he had concerns about the Mother’s ability to care for the children but the children were not negatively affected by seeing Mother and that supervised visitation was safe for the children. The Guardian ad Litem reported that the children were bonded to their mother and that termination would not harm the children because the maternal aunt would allow contact with Mother if the aunt was permitted to adopt.
The trial court based its finding that termination was the least restrictive means of protecting the children on Mother’s lack of progress in remedying the issues that brought her children into care. Additionally, the trial court noted that the “mere availability of a potential relative placement, especially one disclosed on the eve of trial” did not mean such a placement is the least restrictive for the children. The trial court looked to the A.H. v. Department of Children & Families, 144So. 3d 662 (Fla. 1st DCA 2014) case for guidance on least restrictive means, finding that A.H. looked at the “availability of a permanent placement plus the existence of a parent child relationship plus the existence of a less restrictive alternative to termination that would guard the children from harm.” The trial court found that in the instant case “the test of A.H.” was not met because no evidence was presented as to the existence of a relationship between the children and Mother.
The First DCA disagreed with the trial court’s reading and application of A.H. The First DCA agreed with Mother’s argument that terminating her parental rights was not the least restrictive means to protect the children because of the trial court’s finding that continued contact with mother and the children would not endanger the children and its finding that the children had a bond with their mother. The First DCA affirmed that termination was warranted and in the children’s best interest but remanded as to the finding that termination was the least restrictive means to protect the children from serious harm.