N.B. v. Department of Children and Families, 41 Fla. L. Weekly D168 (Fla. 3rd DCA 2016)

Mother appealed termination of her parental rights, asserting that § 39.806(1)(l) is unconstitutional. The Third District Court of Appeals (Third DCA) found the Statute to be constitutional and affirmed termination.

Florida Statue § 39.806(1)(l) permits filing a TPR petition when the child or another child of the parent(s) have been placed in out of home care based on conditions caused by the parent(s) on three or more occasions. Mother cited to Santosky v. Kramer, 455 U.S. 745 (1982), which held that a state must support its allegations by at least clear and convincing evidence prior to terminating parental rights. Mother argued  § 39.806(1)(l) permits termination based on a lesser standard of proof than what is required for TPR (clear and convincing). Because the individual out of home placements were based on probable cause or preponderance of the evidence standards, mother argued that termination based on multiple prior out of home placements must also have been based on a lower standard of proof. She further argued that the statute is not narrowly tailored to advance the compelling interest in protecting the physical and psychological well-being of children.

The Third DCA held that the statutory ground of three or more out of home placements was established by clear and convincing evidence and not by a lesser standard.   Citing to K.J. ex rel. A.J. v. Department of Children and Families, 33 So. 3d 88, 90 (Fla. 1st DCA 2010)(concurring), the Third DCA agreed with the First DCA’s holding that in the drafting of the statute the “legislature concluded it is harmful for children to be removed from the same home numerous times; therefore prior instances of out of home placement can be relied on in establishing grounds for the termination of parental rights.” Additionally, the Third DCA noted that the legislature inserted other safeguards into Chapter 39, specifically that the state must not only establish grounds for termination but also that the termination, by clear and convincing evidence, is in the manifest best interest of the children and the least restrictive means of protecting the children from harm.
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