Opinion
Case No. 2D03-1678.
Opinion filed April 7, 2004.
Appeal from the Circuit Court for Highlands County, J. David Langford, Judge.
John S. Patterson of Hagen Patterson, P.A., Sarasota, for Appellant.
Douglas B. Sherman, Department of Children and Family Services, Bartow, for Appellee.
L.N., the natural mother (the Mother) of E.D., B.N., A.N., and R.N., appeals the final judgment terminating her parental rights. The trial court ruled that sections 39.806(1)(b) and 39.806(1)(c), Florida Statutes (2001), authorized termination of her parental rights to all four children. We reverse the termination of her rights to E.D. because the Department of Children and Family Services (the Department) failed to allege or prove requisite grounds for severing one parent's rights without severing the parental rights of the other parent. We reverse the termination of her rights to B.N., A.N., and R.N. because the competent, substantial evidence did not support a finding that the Department proved by clear and convincing evidence that the Mother abandoned these children under section 39.806(1)(b) and that the termination was the least restrictive alternative under section 39.806(1)(c) to protect the children from harm.
On January 9, 2002, the Department filed a petition for termination of parental rights alleging two grounds: (1) that the Mother abandoned the children pursuant to section 39.806(1)(b) and (2) that the Mother engaged in conduct toward the children which demonstrated that the continuing involvement of the Mother in the parent-child relationship threatened the life, safety, or physical, mental, or emotional health of the children irrespective of the provision of services, pursuant to section 39.806(1)(c). The petition identified a man whose initials are R.N. (not the child R.N.) as the father (the Father) of all four children and sought termination of his parental rights on the same grounds.
The Child E.D
At an adjudicatory hearing on February 26, 2003, the Father voluntarily surrendered his parental rights to the three youngest children, B.N., A.N., and R.N. The record suggests that the Father may not be the father of the oldest child, E.D., and that the petition misidentified him as such. Regardless of the petition's accuracy, the record provided to us does not contain any evidence that the parental rights of E.D.'s father have been terminated. Thus, after the Father surrendered his rights to B.N., A.N., and R.N., the action to terminate the Mother's parental rights to E.D. proceeded as an action to sever the parental rights of one parent without severing the rights of the other parent.
We are informed that during pendency of this appeal, the Department initiated a search for E.D.'s father.
Section 39.811(6) lists the "only" circumstances under which the parental rights of one parent may be terminated without severing the rights of the other parent. The petition for termination of parental rights did not allege that any of the circumstances described in section 39.811(6) existed, nor did the Department adduce evidence at the adjudicatory hearing to establish the existence of any of those circumstances. Because termination of the Mother's parental rights to E.D. was not permitted under section 39.811(6), the final judgment is reversed as it pertains to the Mother's rights to E.D.
Section 39.811(6) provides:
The parental rights of one parent may be severed without severing the parental rights of the other parent only under the following circumstances:
(a) If the child has only one surviving parent;
(b) If the identity of a prospective parent has been established as unknown after sworn testimony;
(c) If the parent whose rights are being terminated became a parent through a single-parent adoption;
(d) If the protection of the child demands termination of the rights of a single parent; or
(e) If the parent whose rights are being terminated meets any of the criteria specified in s. 39.806(1)(d) and (f)-(i).
Notably, the grounds for terminating the Mother's rights to E.D. cited in the final judgment — abandonment under section 39.806(b) and conduct threatening the child's well-being under section 39.806(c) — are not included in the criteria specified in section 39.811(6)(e).
The Children B.N., A.N., and R.N.
After the adjudicatory hearing, the trial court entered final judgment accepting the grounds for termination asserted by the Department. First, pursuant to section 39.806(1)(b), the trial court found that the Mother abandoned the children because "she failed to contribute to the cost of their care upon her incarceration. She also engaged in conduct which resulted in her arrest and incarceration. Her conduct evinces no settled purpose to assume all parental duties."
The arrest to which the trial court referred occurred in September 2001, approximately eight months after B.N., A.N., and R.N. were sheltered with the paternal grandmother and her husband The Mother stole $3,000 worth of jewelry from her mother and was convicted of burglary of a dwelling and possession of methampheta-mine. She was sentenced to prison in April 2002, and the children remained in the custody of the paternal grandmother through the time of the adjudicatory hearing in February 2003. The paternal grandmother testified that after the Mother was sent to prison, the Mother began calling the children once or twice per week but then was limited to once per month by the paternal grandmother. The Mother continued calling the children to the limit she was allowed. According to the paternal grandmother, the Mother also "regularly" sent cards, including birthday cards and Christmas cards, missing one Christmas. The Mother substantially corroborated the paternal grand-mother's version of events.
To reverse a trial court's determination that its finding of abandonment is supported by clear and convincing evidence, the appellate court must determine as a matter of law that no reasonable person could agree with the trial court's determination. See F.C., Sr. v. State, Dep't of Children Families (In the Interest of F.C., Jr.), 780 So.2d 159, 162 (Fla. 2d DCA 2001) (citing Deese v. State, Dep't of Children Families (In the Interest of A.L.W.), 590 So.2d 984, 985 (Fla. 1st DCA 1991)). The task of the appellate court is not to conduct a de novo review and reweigh the evidence. G.W.B. v. J.S.W. (In re Adoption of Baby E.A.W.), 658 So.2d 961, 967 (Fla. 1995).
In this case, the trial court's findings regarding abandonment related solely to the Mother's conduct after she was incarcerated. Incarceration may be a factor in support of a finding of abandonment, but it cannot be the only factor. J.T. v. Dep't of Children Family Servs. (In the Interest of T.B.), 819 So.2d 270, 272 (Fla. 2d DCA 2002) (citing W.T.J. v. E.W.R., 721 So.2d 723, 725 (Fla. 1998)). This court has held that it is "improper to terminate parental rights if a parent is unable to financially provide for the child or to assume parental obligations due to incarceration." Id. There is no evidence in the record that the Mother was able to provide support for the children while incarcerated. In addition, the trial court overlooked undisputed and corroborated testimony that the Mother communicated with the children by telephone to the fullest extent permitted by the children's custodian and that she regularly sent the children cards while she was incarcerated. Although the trial court was of the opinion that the Mother's efforts were only marginal efforts that did not evince a settled purpose to assume all parental duties, see § 39.01(1), its finding of abandonment does not reflect that it was based on any factor other than the Mother's incarceration. Cf. M.A. v. Dep't of Children Families, 814 So.2d 1244, 1245-46 (Fla. 5th DCA 2002) (affirming termination of parental rights for abandonment where the father did not write any letters when imprisoned, did not request visitation with the children when out of prison, did not express concern for the children, and did not make an effort to provide for them in five years). Therefore, the trial court's finding that the Mother abandoned the children was clearly erroneous.
As an alternative and independent ground for termination of parental rights, the trial court found that the continuing involvement of the Mother with the child would threaten the child's life, safety, or health irrespective of the provision of services, pursuant to section 39.806(1)(c). Supporting termination on this ground, the trial court repeated its findings related to the Mother's incarceration. In addition, the trial court described the Mother's failure to comply with the tasks of two case plans given to the Mother in April and June 2001. Among the Mother's tasks were to obtain and maintain adequate income and stable housing, complete various types of counseling, and obtain a substance abuse evaluation and follow recommendations for treatment. There was no evidence that the Mother had a present drug abuse problem that posed a risk of harm to the children. There was no evidence that the Mother physically abused the children or that the Mother exposed the children to people who posed a risk of harm to them. Instead, according to the guardian ad litem's report and the Department's summation at the adjudicatory hearing, the threat the Mother posed to the children was her inability to provide a stable living arrangement. When the children lived with the Mother, she abruptly moved the family on more than one occasion to avoid eviction for nonpayment of rent. In addition, the children were often shifted from the Mother's care to the paternal grandmother's care and back again — first voluntarily, then through the Department's intervention. According to the Department, the Mother's breach of the case plans, together with her incarceration, demonstrated that her continuing involvement with the children would result in instability in their lives. The Department predicted that the paternal grandmother — who expressed a willingness to adopt the children — and her husband would provide the stability the children needed.
The Department did not assert section 39.806(1)(e) as a ground for termination. Thus the Mother's failure to comply with the case plans, standing alone, did not constitute evidence of continuing abuse, neglect, or abandonment.
To prove the allegations supporting the termination of parental rights under section 39.806(1)(c), three sequential requirements must be met: first, the court must find the children's life, safety, or health would be threatened by continued interaction with the parent, regardless of the provision of services; second, if the court makes such a finding, the Department must then prove there is no reasonable basis to believe the parent will improve; and third, the Department must show termination is the least restrictive means of protecting the children from serious harm. O.M. v. Dep't of Children Family Servs. (In the Interest of G.C.A.), 863 So.2d 476 (Fla. 2d DCA 2004); M.H. v. Dep't of Children Families, 2004 WL 360811 at *2 (Fla. 1st DCA Feb. 27, 2004) (opinion upon clarification); see R.W.W. v. State, Dep't of Children Families (In the Interest of C.W.W.), 788 So.2d 1020, 1024 (Fla. 2d DCA 2001) (elaborating on the requirements to prove grounds for termination under section 39.806(1)(c)).
We note that before termination can occur under any statutory provision, the trial court must also conclude that termination is in the children's manifest best interests pursuant to section 39.810.
Competent, substantial evidence supports the finding that the Department met its burden with regard to the first and second steps. Although the Mother testified that she sought and obtained counseling and vocational training while in prison and was making plans for job placement after prison, she offered no documentary evidence corroborating these efforts. An appellate court cannot question the trial court's assessment of the witnesses' credibility. L.C. v. Dep't of Children Family Servs. (In the Interest of A.C.), 848 So.2d 433, 433 (Fla. 2d DCA 2003).
The third step required the Department to prove that termination was the least restrictive alternative to protect the children from serious harm. O.M., 863 So.2d at 480; see Padgett v. Dep't of Health Rehabilitative Servs., 577 So.2d 565, 571 (Fla. 1991). Those measures short of termination should be utilized if such measures will permit the safe reestablishment of the parent-child bond. L.B. v. Dep't of Children Families, 835 So.2d 1189, 1196 (Fla. 1st DCA 2002).
As noted above, the Mother's threat of harm to the children related to her inability to maintain a stable living arrangement. No other threat of harm was found to support termination. At the time of the adjudicatory hearing, the children had been successfully placed in long-term care with the paternal grandmother and her husband To protect the children from the harm of the Mother's inability to maintain a stable living arrangement, a less restrictive alternative to termination would have been to continue the successful, stable relative placement and allow the Mother to maintain a relationship with the children. See E.E.A. v. Dep't of Children Family Servs. (In the Interest of D.A.), 846 So.2d 1250, 1252 (Fla. 2d DCA 2003) (finding that a less restrictive alternative to termination under section 39.806(1)(c) was to place the children with the maternal grandmother when the mother was incapable of being the children's custodial caretaker and the only harm to the children had resulted from the Department continuously moving them from foster home to foster home); M.H., 2004 WL 360811 at *3 (criticizing the Department for not pursuing long-term relative placement when the mother's treatment for drug addiction and frequent relapses rendered her unable to be the custodial caretaker but did not otherwise harm the children so as to support termination under section 39.806(1)(c)); see also K.M.B. v. Dep't of Children Families (In the Interest of D.W.), 793 So.2d 39, 40 (Fla. 2d DCA 2001) (finding that termination of the mother's rights was not the least restrictive alternative when the children were placed in the custody of their individual fathers and thus removed from any danger in which they may have been while living with the mother).
In its brief to this court, the Department's argument on this point acknowledged that the Mother's involvement in the children's lives would likely continue after her rights were terminated, assuming the paternal grandmother adopts the children. The Department argued that the result of termination in such a case would be "a kind of `least restrictive means'" because "[a]fter children are adopted by a relative, families still interact and congregate, and biological parents still have contact with their children." It is inconsistent and disingenuous for the Department to argue that the Mother's rights should be terminated because her continuing involvement in her children's lives threatens their well-being and yet simultaneously argue that termination is acceptable because her involvement in their lives would likely continue after termination. Termination of parental rights is and should be a complete deprivation of a fundamental liberty interest. See R.W.W., 788 So.2d at 1023. The promise of relative adoption — a contingency that may or may not occur after termination — cannot transform termination into a less restrictive alternative than it is.
Because of our decision, we do not address the Mother's other arguments. We affirm without discussion the denial of her motion to disqualify the trial judge.
Conclusion
For the reasons described above, the final judgment terminating the Mother's parental rights to E.D., B.N., A.N., and R.N. is reversed. Our reversal is based on the state of the record at the time this case came to our court. On remand, the Department must consider whether, in light of this opinion and the facts as they exist after remand, to offer the Mother a case plan with a goal of reunification. After remand, if circumstances exist that satisfy the statutory requirements for termination without such a plan, the Department may proceed accordingly. If the Department offers the Mother a case plan and she fails to comply, the Department may again petition to terminate her parental rights.
Reversed and remanded.
CASANUEVA and COVINGTON, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED