Interpreting the S.M. Case – Least Restrictive Means

Guardian ad Litem Program v. Department of Children and Families, 2016 WL 7497280 (Fla. 5th DCA)

This is the first district court case applying the least restrictive means test since it was recently clarified by the Supreme Court of Florida. S.M. v. Fla. Dep’t of Children and Families, 202 So. 3d 769, 778 (Fla. 2016).

The Guardian ad Litem Program appealed denial of Mother and Father’s parental rights to their twins. Although the trial court found that the Department established grounds for termination of parental rights and found that termination of parental rights was in the children’s best interest, the court denied termination under the least restrictive means analysis. The trial court found that giving Mother an additional six months to work on her case plan was equally safe for the children. The Fifth DCA reversed.

The Fifth District Court of Appeal turned to the recent Supreme Court case, which clarified conflicting applications of the least restrictive means test and adopted the Fourth District’s position. Id. The Supreme Court held that the Fourth District properly put the focus on the Department’s actions prior to filing the termination petition rather on what remained of the parent/child bond.

The test is not whether under controlled circumstances, a parent can have contact with the child and develop an emotional bond, but whether a mother or a father can be a parent to the child, with all the responsibility and care that entails. If reunification is not possible because the father or mother cannot or will not assume responsibility as a parent to the child, as demonstrated, for example, by the repeated failure to comply with a case plan, then termination is the least restrictive means of preventing harm.

Id. at 780, quoting S.M. v. Dep’t of C hildren and Families, 190 So. 3d 125, 129 (Fla. 4th DCA 2015).

In the instant case, the trial court’s order denying termination held that the Department offered Mother several case plans. She failed to comply with any of the case plans. The Fifth DCA held that this finding alone meets the least restrictive means test. Additionally, the Fifth DCA held that the trial court improperly looked beyond the date of the petition to the possibility of Mother making improvements in six additional months. The trial court should have limited its focus only on the Department’s efforts prior to the filing of the termination petition.