In re G.M., Jr., 71 So.3d 924 (Fla. 2d DCA 2011)

The father appealed the trial court’s order terminating his parental rights based on his failure to complete his case plan tasks and abandonment. The father argued he was unable to comply with his case plan because the Department of Children and Family Services (department) failed to make reasonable efforts to reunify the father with his child. The father was incarcerated and during that time seven case managers assigned to his case did not send him a copy of his case plan or discuss it with him. He never signed a case plan. The department failed to respond to written requests for help from the father. The father even sought “transfer to another facility in order to participate in a parenting class and other programs.” The Second District Court of Appeal (Second DCA) cited another case stating, “[w]here a court is terminating parental rights based on a parent’s failure to comply with a case plan or a performance agreement, it is axiomatic that the parent must have the substantial ability to comply with the plan or agreement.” Hutson v. State, 687 So.2d 924, 925 (Fla. 2d DCA 1997).

The trial court also found the father had abandoned the child because he failed to support and communicate with the child. “Section 39.806(1)(e)(1) provides that a parent’s failure to complete a case plan within nine months after an adjudication of the child as dependent is evidence of abandonment, abuse, or neglect.” The Second DCA held that the termination of parental rights based on abandonment was improper where the father established a communication link with the child. “Incarceration . . . does not constitute abandonment as a matter of law. Rather, it is a factor for consideration. T.H. v. Dep’t of Children & Family Servs., 979 So.2d 1075, 1080 (Fla. 2d DCA 2008). “[T]he parent’s efforts, or lack thereof, to assume parental duties while incarcerated must be considered in light of the limited opportunities to assume those duties while in prison.” Id. at 1080 (citing Wirsing v. Dep’t of Health & Rehabilitative Servs., 498 So.2d 946, 948 (Fla.1986)).”

The Second DCA reversed and remanded the case.

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