Florida Guardian ad Litem
Legal Briefs Newsletter
February 2016
First District Court of Appeal 
Department of Children and Families v. B.C., 2016 WL 635072 (Fla. 1st DCA)
To terminate parental rights there must be: the existence of a statutory ground for termination under § 39.806; that termination is in the child's manifest best interests under § 39.810; and the termination of parental rights is the least restrictive means of protecting the child from serious harm. The trial court concluded based on clear and convincing evidence that termination of parental rights was warranted and in the manifest best interests of the children involved. But held the application of the least restrictive means test precluded [the court] from terminating parental rights because "some limited opportunities existed for supervised or telephonic parental contact that posed no harm to the children, none offering any potential for reunification."

The First District Court of Appeal (First DCA) reversed and remanded the trial court's decision not to terminate parental rights.  The First DCA summarized the trial court's findings as the following: "the trial court's analysis is that despite clear and convincing evidence that the parental bond was beyond reunification and should be terminated, three recent cases . . . suggest that the availability of some highly constrained, sporadic, and closely supervised contact between child and parent automatically forestalls termination." The First DCA reviewed three cases the trial court relied upon in its decision not to terminate parental rights ( G.H. v. Department of Children and Families, 145 So.3d 884 (Fla. 1st DCA 2014); A.H. v. Department of Children and Families, 144 So.3d 662 (Fla. 1st DCA 2014); C.D. v. Department of Children and Families, 164 So.3d 40 (Fla. 1st DCA 2015)).

The First DCA rejected the idea that "termination is impermissible under the least restrictive means test simply because some limited and highly restricted contact with a parent may pose no harm."
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J.P. v. Florida Department of Children and Families, 2015 WL 167394 (Fla. 1st DCA)
Mother appealed termination of her parental rights as to her daughter, T.P. The First District Court of Appeal (First DCA) affirmed the TPR utilizing the "highly deferential" standard of review.

T.P. came to the attention of the department following two hospitalizations for nephrotic syndrome and allegations of medical neglect. Mother was provided training on her daughter's diagnosis and resulting needs. Mother was openly not supportive of the dietary restrictions required to maintain her child's health and repeatedly failed to comply with the restrictions. Termination was granted under § 39.806(1)(c).

The First DCA held that its review of a trial court's decision "is limited to whether competent, substantial evidence supports the trial court's final judgment." Such a review is highly deferential. Citing to J .E. v. Department of Children and Families, 126 So. 3d 424, 237 (Fla. 4th DCA 2013) (quoting D.P. v. Department of Children and Family Services, 930 So. 2d 798, 801 (Fla. 3d DCA 2006)). The First DCA noted that "a finding that evidence is clear and convincing enjoys a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in evidentiary support."

The First DCA declined to reweigh the evidence presented at trial and found sufficient evidence in the record to support all required findings
Second District Court of Appeal 
In re A.W., 2015 WL 9258506 (Fla. 2nd DCA).
Mother appealed termination of her parental rights to her daughters, S.W. and A.W. The Second District Court of Appeal (Second DCA) reversed and remanded, finding that the trial court erroneously applied a statutory amendment retroactively in its findings.

N.W. lived with her long-term girlfriend T.H., T.H.'s daughter T.K.H, and N.W.'s daughters. N.W. and T.H. had a "long and violent history." Although there was no evidence presented that N.W.'s daughters were abused by N.W. or witnessed any abuse or domestic violence by N.W., T.K.H. was abused repeatedly by N.W. Termination of N.W.'s parental rights was granted pursuant to a 2014 amendment to § 39.806(1)(f), which allows for termination when the parent engaged in "egregious conduct . . that threatens the life, safety or physical, mental or emotional health of the child or the child's sibling. Poof of a nexus between egregious conduct to a child and the potential harm to the child's sibling is not required" (emphasis added to note the amendment).

The trial court found that adding the language that a proof of nexus is not required merely clarified the department's burden and was not a substantive change in the law. The trial court retroactively applied the amended statute. No findings were made as to whether there was any connection between N.W.'s abuse of T.K.H. and potential harm to N.W.'s children.
The Second DCA found that the amendment did not change the burden of proof, which remained clear and convincing evidence, but eliminated what was an underlying element of a ground for termination. This elimination of a nexus between abuse of one child and potential harm to another was a substantial change in the law and therefore cannot be applied retroactively.
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In re E.D., 2015 WL 9487592 (Fla. 2nd DCA)
Mother appealed termination of her parental rights. The Second District Court of Appeal (Second DCA) affirmed but was "compelled to write to remind the trial court about the strict time frames in cases involving the termination of parental rights." The trial court did not issue its final judgment until eight months after the termination hearing. The Second DCA pointed out that such a delay was well beyond the sixty day time frame required by Florida Rule of Judicial Administration 2.215(f) and did not comply with the policy of expediting termination proceedings set forth by Florida Rule of Judicial Administration 2.215(g) and Florida Statute § 39.0136(1) .
In re B.F., 2016 WL 166669 (Fla. 2nd DCA)
Mother appealed termination of her parental rights. Although the Second District Court of Appeal (Second DCA) affirmed, the Second DCA issued an opinion to express its concern with the elimination of the nexus requirement in amended  § 39.806(1)(f). The Second DCA noted concern regarding the constitutionality of the amendment, specifically that the amendment might not withstand a strict scrutiny analysis. The Second DCA advised caution until the matter is resolved by binding precedent.
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In re S.M., 2016 WL 275273 (Fla. 2nd DCA)
Father appealed a final judgment terminating his parental rights and an order denying his motion to set aside his implied consent to termination based on his failure to appear at the hearing. Father asserted that he provided evidence of excusable neglect for his failure to appear. The Second District Court of Appeal (Second DCA) reversed the order denying Father's motion and remanded for a new termination hearing.

Father was incarcerated at the time of the termination hearing and was refused transport to the courthouse. He argued that he believed he could appear by telephone and remained by the telephone waiting for a phone call from the court.   The record showed that the trial judge previously told Father he would have the option of appearing by phone if he was incarcerated at the time of the hearing.

Florida Statute § 39.801(3)(d) provides that the "failure of [a] parent to personally appear at the adjudicatory hearing shall constitute consent for termination of parental rights." The Third DCA referenced several cases, however, that favored adjudication on the merits over an entry of default. In three such cases, the Second DCA allowed for a continuance or telephonic participation.

To set aside a default judgment, Father bore the burden of showing he "act[ed] with due diligence, demonstrate[d] excusable neglect, and demonstrate[d] the existence of a meritorious defense to the termination petition." Department of Children and Family Services v. P.E., 14 So. 3d 228, 236 (Fla. 2009). The Third DCA found that Father acted diligently in seeking to set aside his consent by default. Noting the trial court's prior statement to Father that he could participate by phone, the Third DCA found Father's failure to appear was based on excusable neglect. Finally, because Father asserted Mother kept the children from him, which, if proven, could be a defense to abandonment, the Second DCA found Father met his burden of persuasion to set aside the default.
Third District Court of Appeal 
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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NOTE.  All other dependency opinions issued by the Third DCA involve unaccompanied minors who utilized Petitions for Dependency to facilitate applications for Special Juvenile Immigration Status.

In re B.R.C.M., 2015 WL 9584743 (Fla. 3rd DCA)
B.R.C.M. appealed a summary dismissal of his Petition for Dependency. The Third District Court of Appeals (Third DCA) affirmed and Judge Salter filed a lengthy dissent.

B.R.C.M. was born in Guatemala, abandoned by his father at birth and abandoned by his mother when he was four years old. He was raised by his grandmother until he was fourteen years old and she was too old to provide for his care. Because he had no other relatives to care for him and feared he would be assaulted or forced to join a local gang, he traveled illegally into the United States with some friends. After turning himself in to border patrol, he was placed with his godmother in Miami.

The Third DCA reiterated that the purpose of the dependency provisions in Chapter 39 is "to provide services to children who are truly (emphasis in the decision) abandoned, abused or neglected" rather than facilitate the pursuit of Special Juvenile Immigrant Status. The Third DCA found that the abandonment of B.R.C.M. by his parents and resulting neglect by failing to make arrangements for his care were both too remote in time to be a basis for dependency. There was no allegation that B.R.C.M. was abused and the godmother was meeting all of the child's needs.
Dissent: Judge Salter argued in his lengthy dissent that the instant case warrants individualized consideration and adjudication rather than summary denial. Salter asserted the department should investigate the claims in these types of petitions and the trial courts should hold evidentiary hearings rather than denying the petitions outright. If petitions fail to state a prima facie case, Salter argued the petitioner should be permitted to amend the petition. In the alternative, Salter argued that the issue central to these cases is of great public importance and should be certified to the Supreme Court.

After completing a fourteen page historical analysis of similar cases from 2005 to the present, Salter noted a shift from evidentiary hearings and appeals to the Department treating these dependency petitions from immigrant juveniles as not warranting of investigation with the trial court (and the District Circuit Courts) finding them appropriate for summary denial.

Salter then turned to H.S.P. v. J.K., 121 A.3d 849, 860 (N.J. 2015), where New Jersey recently set forth the following procedure for handling these type of cases:

In an effort to ensure that factual findings issues by New Jersey courts provide USCIS with the necessary information to determine whether a given alien satisfies the eligibility criteria for SIJ status we instruct courts of the Family Part to make separate findings as to abuse, neglect and abandonment with regard to both legal parents of an alien juvenile . . . Regardless of the outcome of [the analysis of one parent], the court should next conduct the same analysis with regard to the child's other legal parent.

Salter urged Florida to adopt a similar procedure including individual investigation and evidentiary hearings.   
S.F.A.C. v. Department of Children and Families, 2015 WL 9584395 (Fla. 3rd DCA)
The majority issued a per curium decision, affirming denial of S.F.A.C.'s private petition for dependency. Justice Salter dissented.

S.F.A.C. was born in Honduras and left by his parents with an older sibling when he was nine years old. When he was twelve years old, he was sent to live with an aunt. The aunt and her husband forced him to work, mistreated him, yelled at him, limited his food and were aggressive towards him. S.F.A.C. and his sister fled to the United States through Mexico. After being detained, S.F.A.C. was released to his mother's custody in Miami. In his dependency petition, S.F.A.C. alleged that he was abandoned by each of his parents, that he had no parent or custodian capable of providing care for him and that he was at substantial risk of imminent abuse, abandonment or neglect by his parent or custodian.

Salter reiterated his belief that these cases warrant individualized adjudication. Salter proposed the Florida courts follow the New Jersey procedure or something similar.   In arguing against "a categorical, summary denial of all juvenile immigrant petitions . . . followed by the categorical and summary affirmance of those circuit court denial orders on appellate review," Salter urged "we cannot lose sight of the fact that each immigrant juvenile petitioner is a child inside our state borders . . and that each such petitioner is equal to other Florida children under the law."
In re E.P.N., 180 So.3d 249 (Fla. 3rd DCA 2015)
Although the majority affirmed summary denial of E.P.N.'s appeal, a dissent was filed by Justice Salter. Salter noted factual differences in E.P.N.'s case that he believed established a prima facie basis for her claims and was entitled to an evidentiary hearing on her petition. E.P.N. was released by the Office of Refugee Resettlement to her mother and her petition alleged abandonment by her father pursuant to § 39.01(15)(a) and abuse pursuant to § 39.01(15)(f) by both her mother and her father within the past two years, when she was left with a relative who beat her. Similar to other recent cases, E.P.N.'s petition was denied following a brief hearing during which no evidence was taken and the department took no position. 
In re S.A.R.D., 2016 WL 145999 (Fla. 3rd DCA)
S.A.R.D. appealed dismissal of his private petition for dependency. The Third District Court of Appeals (Third DCA) affirmed, finding the record supported the trial court's finding that S.A.R.D. was not abandoned, abused or neglected by his mother.

S.A.R.D. asserted in his petition that he was born in Honduras. He lived primarily with his mother and uncle after his father abandoned him when he was seven years old. After his uncle was murdered in 2012, he continued to live with his mother. Sometime after the murder, S.A.R.D. worked on a coffee farm to help financially meet his needs. In 2014, he left his mother and illegally entered the United States. After being brought to the attention of immigration, S.A.R.D. lived with family friends and was at no immediate risk of abuse, abandonment or neglect. He was nine days shy of his eighteenth birthday when the petition was filed.

S.A.R.D.'s petition for dependency asserted abandonment by his father and neglect by his mother. The Third DCA, following other recent cases, found that abandonment by his father over ten years earlier was too remote in time. As to neglect by his mother, the Third DCA noted the absence of any allegation that mother was willfully neglectful and had the ability to meet his needs, a component required in § 39.01(44). The Third DCA found that S.A.R.D.'s petition did not meet the prima facie threshold for a finding of dependency. As the other majority decisions similarly noted, the Third DCA concluded by stating "[t]he primary goal of the statute is to preserve the family structure, not to provide a gateway to citizenship for children who are entering this county illegally in search of a better life."  

Fourth District Court of Appeal 
Department of Children and Families v. J.S.,2016 WL 145866 (Fla. 4th DCA)
The Department of Children and Families and the Statewide Guardian ad Litem Program appealed a final judgment denying the department's Petition to terminate the rights of both parents. The Fourth District Court of Appeal (Fourth DCA) reversed denial of termination.
The child resided with Mother for the first two years of his life. The child was removed from his mother and placed in his father's temporary custody. Four months later, Father violated a court order and took the child out of state. The child was then removed from Father and placed with his maternal grandmother and half-sibling. One year later, Father was convicted of several violent offences. His anticipated release date was August 2019, when the child will be ten years old. In the six months prior to the adjudication hearing, Father's only contact with the child was one letter.

The appellants argued, and the Fourth DCA agreed, that the trial court "erred in finding that the father's incarceration period does not constitute a significant portion of the child's minority under section 39.801(1)(d)1." The Fourth DCA noted that  § 39.806(1)(d)1 not only requires the trial court consider the child's age but also "the child's need for a permanent and stable home." The trial court failed to make such findings and by doing so committed reversible error. The Fourth DCA found that there was no competent substantial evidence to support the trial court's finding that the period of incarceration would not constitute a significant portion of the child's minority. Instead, the Fourth DCA found that the child had no relationship with his Father and the only home the child ever knew was his grandmother's. Failure to terminate Father's rights would cause the child to sit in limbo rather than achieve permanency through adoption. The Fourth DCA distinguished the instant case from D.S. v. Department of Children and Families, 164 So. 29 (Fla. 4th DCA 2015). In the instant case, the record reflects "almost no effort from the father to be part of his son's life." In D.S., the father remained actively involved with the children that were placed in relative care.

The Fourth DCA also agreed with the department's argument that the trial court "erred in finding that the incarcerated father's continued parental relationship with the child would not be contrary to the child's best interest under § 39.806(1)(d)3." The Fourth DCA found the trial court failed to address a number of the factors enumerated in the subsection. Specifically, the trial court failed to consider the relationship between the child and the father, the father's current and past support of the child's needs, the fact that the father's conviction was his second conviction for violent offenses, and the child's age when considering harm from the father's prolonged unavailability to parent.
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Resources  kids-holding-hands.jpg
Learn more about Special Immigrant Juvenile Status:
  • Special Immigrant Juvenile Status in Florida
    A Guide for Judges, Lawyers, and Child Advocates, developed by Immigrant Children's Legal Services Partnership and the Children &Youth Law Clinic University of Miami School of Law
If you have any questions or comments please email me at Elizabeth.Damski@gal.fl.gov