State v. T.S., 155 So.3d 476 (Fla. 1st DCA 2015)

The trial court found that the Department of Children and Families (Department) met the statutory factors for termination of parental rights and established that termination was in the best interests of the child but denied termination, finding it was not the least restrictive means to protect the child. The Department appealed the findings related to least restrictive means. The First District Court of Appeal (First DCA) agreed with the Department’s argument that the trial court improperly relied on “the availability of a non-adoptive placement with a relative” in determining that termination was not the least restrictive means to protect the child. Florida Statute § 39.810(1) prohibits the court from basing its decision not to terminate rights solely on the availability of an alternative placement.

Although the trial court cited to two recent First DCA cases to support their findings (A.H. v. Dep’t of Children and Families, 144 So. 3d 662 (Fla. 1st DCA 2014) and G.H. v. Dep’t of Children and Families, 145 So. 3d 884 (Fla. 1st DCA 2014)), the First DCA distinguished both from the case at hand. In A.H., the child had a pre-existing permanent guardianship with a foster mother. There was no indication the birth mother was a danger to the child, the child’s interactions with the birth mother were positive and the child wanted to maintain a relationship with the mother. The Department ultimately conceded that maintaining the permanent guardianship was a less restrictive alternative to termination. In G.H., the child had been sexually abused by her sibling but had a strong bond with her parents. The trial court denied termination finding that the harm to the child by permanent separation from her parents would be greater than that of reunification. The First DCA found in G.H. that removing the sibling was less restrictive than terminating the rights of the parents.

In the instant case, there was no pre-existing permanent guardianship. The trial court found that the child would be unsafe with Mother and that Mother had a history of displaying misconduct during visits. No evidence was presented of any other permanency plan besides adoption by the aunt. Without any evidence to support it, the trial court determined that the aunt entering into a permanent guardianship was less restrictive than termination.

The First DCA remanded the case for the trial court to reexamine the availability of a least restrictive means of protecting the child from hard without relying solely on the possibility of a non-adoptive placement with a relative.

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