Expedited TPR Pursuant to section 39.806(1)(m) and Least Restrictive Means-Least restrictive means analysis does not require a reunification case plan for biological father of child conceived by sexual battery

In Interest of X.W., 2018 WL 793733 (Fla. 2d DCA 2018)

The GAL filed an expedited petition to terminate biological father’s parental rights based on his sexual battery of mother when he was twenty-six and she was just eleven years old, and which resulted in the conception of the child, X.W. Despite finding the GAL proved grounds for termination under sections 30.806(1)(d) and (m), the trial court denied the petition concluding that termination would not be in X.W.’s best interests and was not the least restrictive means of protecting him from harm.

The GAL appealed and the Second DCA found the trial court’s findings regarding the manifest best interest and least restrictive means were legally and factually incorrect and reversed and remanded the case with directions. Significantly, the appellate court agreed with the GAL that this is not an ordinary case in which the law requires an opportunity to comply with a case plan, but rather a case of “extraordinary circumstances” where termination of parental rights without the use of case plans is the least restrictive means. The appellate court further explained that even if this were an “ordinary” case that required a case plan, one would not be required here because there was no parent-child bond to reestablish through the provision of a case plan. The appellate court also found that the trial court’s conclusion that termination of parental rights was not in X.M.’s manifest best interest was not supported by the evidence; and that the facts, as found by the trial court, showed the opposite.

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