D.S. v. Department of Children and Families, 2015 WL 1810315 (Fla. 4th DCA)

Father appealed termination of his parental rights based upon his incarceration. The Fourth District Court of Appeal (Fourth DCA) reversed as to two of his three children, finding as to those children that termination was not supported by competent substantial evidence, that termination was not in the children’s manifest best interest or that termination was not the least restrictive means to protect the children from harm.

Father was incarcerated a month prior to the children being removed from their mother with an anticipated release in 2017 or 2018. Two of his three children were placed with their paternal aunt. Father maintained consistent contact with them in the form of weekly letters, two to three phone calls per week, and several contact visits at the prison.   Paternal aunt testified at the termination trial that the children were excited when Father called, called him “daddy” and had a bond with their father. She testified that she was willing to be a permanent guardian for the children but uncertain about the long-term commitment of adoption.

As with the previous summarized case, the Fourth DCA cited to B.C. v. Florida Department of Children and Families, 887 So. 2d 1046, 1054 (Fla. 2004), which held that a determination terminating parental rights “cannot rest exclusively on the length of incarceration. The actual effect of incarceration on the parent-child relationship must also be considered in light of the additional statutory and constitutional requirements.” The Fourth DCA explained that this analysis must be both quantitative and qualitative.

In the instant case, Father’s incarceration amounted to 27%-33% of the children’s lives, an amount that was not a substantial portion of the children’s minorities according to the Supreme Court in B.C. The children were in a stable home with relatives, maintained contact with their father and would maintain contact with the relatives if ultimately reunified with Father upon his release. There was no evidence presented of any harm to the children if they waited until Father’s release to be reunified. The Fourth DCA found the fact that the aunt had not made a decision about adoption an important factor.

Finally, the trial court failed to apply the manifest best interest factors with an appreciation of the restrictions of incarceration as instructed by B.C. and failed to prove that termination was the least restrictive means to prevent harm. The Fourth DCA repeated that no evidence was presented at trial that there would be any harm to the children if father’s rights were not terminated.

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