Department of Children and Families v. J.S.,2016 WL 145866 (Fla. 4th DCA)

The Department of Children and Families and the Statewide Guardian ad Litem Program appealed a final judgment denying the department’s Petition to terminate the rights of both parents. The Fourth District Court of Appeal (Fourth DCA) reversed denial of termination.

The child resided with Mother for the first two years of his life. The child was removed from his mother and placed in his father’s temporary custody. Four months later, Father violated a court order and took the child out of state. The child was then removed from Father and placed with his maternal grandmother and half-sibling. One year later, Father was convicted of several violent offenses. His anticipated release date was August 2019, when the child will be ten years old. In the six months prior to the adjudication hearing, Father’s only contact with the child was one letter.

The appellants argued, and the Fourth DCA agreed, that the trial court “erred in finding that the father’s incarceration period does not constitute a significant portion of the child’s minority under section 39.801(1)(d)1.” The Fourth DCA noted that  § 39.806(1)(d)1 not only requires the trial court consider the child’s age but also “the child’s need for a permanent and stable home.” The trial court failed to make such findings and by doing so committed reversible error. The Fourth DCA found that there was no competent substantial evidence to support the trial court’s finding that the period of incarceration would not constitute a significant portion of the child’s minority. Instead, the Fourth DCA found that the child had no relationship with his Father and the only home the child ever knew was his grandmother’s. Failure to terminate Father’s rights would cause the child to sit in limbo rather than achieve permanency through adoption. The Fourth DCA distinguished the instant case from D.S. v. Department of Children and Families, 164 So. 29 (Fla. 4th DCA 2015). In the instant case, the record reflects “almost no effort from the father to be part of his son’s life.” In D.S., the father remained actively involved with the children that were placed in relative care.

The Fourth DCA also agreed with the department’s argument that the trial court “erred in finding that the incarcerated father’s continued parental relationship with the child would not be contrary to the child’s best interest under § 39.806(1)(d)3.” The Fourth DCA found the trial court failed to address a number of the factors enumerated in the subsection. Specifically, the trial court failed to consider the relationship between the child and the father, the father’s current and past support of the child’s needs, the fact that the father’s conviction was his second conviction for violent offenses, and the child’s age when considering harm from the father’s prolonged unavailability to parent.

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