B.K. v. Dep't of Children & Families

• Decision Date: 20 May 2015
• Docket Number: No. 4D14–3222.,4D14–3222.
• Citation: 166 So.3d 866
• Parties: B.K., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
• Court: Florida District Court of Appeals

166 So.3d 866

B.K., the Father, Appellant

v.DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.

No. 4D14–3222.

District Court of Appeal of Florida, Fourth District.

May 20, 2015.

Lori D. Shelby, Fort Lauderdale, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Fort Lauderdale, for appellee Department of Children and Families.

Patricia Murphy Propheter, Sanford, for appellee Guardian Ad Litem Program.

On Motion for Clarification

WARNER, J.

We grant the motion for clarification, withdraw our previously issued opinion and substitute the following in its place.

A father appeals the trial court's final judgment terminating his parental rights as to his daughter. He claims that his incarceration, upon which termination was based, was not for a significant portion of the child's life, so as to warrant termination. Moreover, he argues termination was not the least restrictive means of preventing harm to the child. Concluding that the trial court's rulings were supported by competent substantial evidence, we affirm the final judgment.

B.K.'s daughter, S.C., was born in October 2008. She was sheltered about a week later, after her mother tested positive for drugs and a sexually transmitted disease

, which the mother imparted to S.C. The mother identified B.K. as the father. The Department of Children and Families stepped in, and, after a paternity test confirmed B.K.'s fatherhood, both parents consented to the dependency.

While the child was in foster care, the father kept in touch with the foster parents and arranged two supervised visits with S.C. His interaction with his child during those visits was appropriate. Unfortunately, in March of 2009, he was convicted of several drug-related crimes, which he committed before S.C.'s birth. He was sentenced to consecutive five-year terms of imprisonment. His projected release date is in early 2017.

S.C. remained in foster care until 2010, when the dependency case was closed and the mother regained custody of S.C. As to B.K., the order of permanency stated only that visitation between S.C. and B.K. should continue to be supervised. Other than that, the order provided for a permanency goal of reunification with the mother.

While S.C. was in foster care, B.K. wrote to her foster parents from prison in order to keep in touch with the child. After S.C. was reunited with her mother, B.K. wrote to S.C. and the mother, but the mother did not make any contact with him. B.K. happened to be housed at the same prison as the mother's brother, so he was able to continue to keep up with S.C.'s life, and he sent her letters and birthday cards.

Between 2009 and 2013, the mother gave birth to two little boys by different fathers. In June 2013, the Department sheltered all three children, due to the mother's substance abuse and domestic violence in the home. B.K. again became part of those proceedings. B.K. wrote to the court in August 2013, stating:

I plan to be a full time father for my daughter upon my release and I am making the necessary preparations while imprisoned. I should be in work release in 18 months. At that point I would like supervised visits with my daughter.... If possible can the court please send me pictures of my daughter.... When I was released on bond in early 2009 I was participating in family dependency court, taking parenting classes, and providing ua [sic] samples.... Unfortunately I lost trial [sic] and was sentenced to 10 years. My daughter is all I have, I beg the courts to let me be a part of her life.

Nevertheless, the Department filed a petition to terminate the parental rights (“TPR”) to S.C. of both the mother and B.K. Regarding B.K., the only ground alleged for termination of parental rights was under section 39.806(1)(d) 1, Florida Statutes: that B.K. was expected to be incarcerated for a significant portion of S.C.'s minority. S.C. was placed with the same foster family as her half-brothers in September 2013.

The court held the final hearing on termination in July 2014. Halfway through the proceedings, the mother consented to termination of her rights to all three children. B.K., however, contested termination. The Department placed into evidence B.K.'s judgment and sentence of ten years. The Department called the children's guardian ad litem (“GAL”) who testified that she had met with the children about ten times, and they were all happy and well-adjusted. She had not met B.K., except in court, because of his incarceration. She knew of at least one phone call that B.K. had with S.C. in 2014 which went well. And she knew that he had written many letters to S.C. as well as to the foster parents. She did not know of any bond between S.C. and B.K., but she had never asked S.C. whether she wanted to have a relationship with her father. She opined the children had formed a significant relationship with the parental substitutes, and it was desirable to maintain continuity of this placement.

The GAL noted that S.C. was seeing a therapist weekly. The therapist felt S.C. was old enough to express a preference regarding placement, but S.C. “did not want to decide. She didn't want that on her shoulders.” The therapist did not testify. The GAL opined that neither the children's mother nor their fathers had the capacity to care for the children to the extent that the children's health, safety and well-being would not be in danger if the children were returned to their parents' care. She further testified that the children would not suffer any harm if a TPR was entered.

The children did not have any emotional or behavioral problems that would be a barrier to adoption or prolonged foster care. The GAL testified the foster family was willing to adopt, and this would be a fast way to achieve permanency for the children. The GAL opined that future contact with either parent should be at the discretion of the adoptive family, but she believed they would be open to it as long as it was appropriate for the children.

The children's foster mother testified she had been the foster mother for S.C. since the end of September 2013, when S.C. joined her half-brothers who had been living with the foster family since June. All three children had been living together, and they had become “super, super, super close ... as close as any brother and sisters.” The entire foster family had bonded with the children and were willing to adopt all three.

The foster parents had not received any financial support for S.C. from her father, B.K. While B.K. had not provided financial support, B.K. had been in communication with both S.C. and the foster mother. The foster mother described letters B.K. had sent S.C.: “They're pictures. So it's hearts and he traced his hand once and writes her name and a Hello Kitty picture. So she hangs them on her walls.” The foster mother described S.C.'s reaction to the letters from her father:

[S]he saw her dad's hand and she was like “wow”. She put up her hand to it and, you know, it's a maze [sic] and there is you know, like wow. And she likes Hello Kitty and she likes seeing her name.

I mean, anybody who gets a letter is like, you know? Everybody loves mail. So she was happy to receive the art.

B.K. had also written to the foster mother to thank her for taking care of S.C., and to tell her he was interested in calling.

The Department took a considerable period of time to arrange a phone call between B.K. and S.C. Finally, in March 2014, B.K. was able to speak with his daughter. The foster mother observed the call. Beforehand, the foster mother told S.C. that her dad would be calling, and S.C. “was excited because she had received letters from him.” Although the foster mother did not think that S.C. really knew who B.K. was, the call was pleasant. S.C. sang songs to her father and recited the alphabet. He told her he loved her, and she said she loved him. The foster mother opined that S.C. was happy during the phone call, but stated, “Any time she gets to talk on the phone she's happy with whoever's she [sic] talks to.” B.K. had tried to call S.C. one other time, but S.C. was taking a nap and the foster mother did not wake her up. She noted B.K. had indicated that he would try to call again, and she may have missed the call.

After the phone call and letters, S.C. never asked the foster mother questions about B.K. The foster mother believed S.C. did not know who she was talking to on the phone because of an incident described by the GAL, where S.C. “thought that those pictures on her wall were [from her half-brother's father]. She assumed that [her brother's father] was the person that she, you know, had talked to and had written her those letters.”

The foster mother opined that continued visitation with the mother would be “very beneficial for” the children because “[t]hey love her. She loves them.” Regarding visitation with the fathers, however, the foster mother was “not as interested” because she “just [didn't] feel the need.” She explained, “The children are happy. The[y] don't have a relationship with the fathers. There's nothing—There's nothing there. So—So to start something I'm not as—not as eager.” But if S.C. wanted to contact her father, the foster mother testified she would allow that.

The Department presented no other witnesses, other than a TPR advocate who testified that no possible relative placements had been found. The only other evidence it offered were multiple letters that B.K. had written to S.C. during the past year.

The child advocate assigned to the case between March 2013 and January 2014, just after the children were sheltered in 2013, testified on B.K.'s behalf. She testified that B.K. had spoken to her multiple times during court proceedings, inquiring about how S.C. was doing, how he could get letters and pictures to her, and if he could have a case plan. When the TPR proceedings started, B.K. would call her and wrote her a three-page letter about S.C. and his case plan tasks. She helped to arrange the...