BC v. Dept. of Children and Families
| Decision Date | 23 September 2004 |
| Docket Number | No. SC03-1632.,SC03-1632. |
| Parties | B.C., the father, Petitioner, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Respondent. |
| Court | Florida Supreme Court |
Frank A. Kreidler, Lake Worth, FL, for Petitioner.
Jeffrey Dana Gillen and Crystal Y. Yates-Hammond, West Palm Beach, FL, for Respondent.
This case concerns termination of the parental rights of a person serving a prison sentence. We are called upon to construe section 39.806(1)(d)(1), Florida Statutes (2003), which provides, in pertinent part:
The certified conflict issue is whether this provision requires consideration of "the entire period of incarceration, or only the period to be served after the petition for termination is filed." Dep't of Children & Family Servs. v. B.C., 884 So.2d 955, 955 (Fla. 4th DCA 2003). The Fourth District concluded that the entire period is the correct measurement, and certified conflict with two Second District decisions holding that the remaining period of incarceration is the appropriate standard. See In re J.D.C., 819 So.2d 264 (Fla. 2d DCA 2002)
; In re A.W., 816 So.2d 1261 (Fla. 2d DCA 2002).1 For the reasons that follow, we agree with the Second District.
B.C. is the father of a daughter born in May 1998. At that time, B.C. was incarcerated, but was released in September 1998. B.C. was returned to custody in December 1998, and in June 1999 commenced concurrent prison sentences, which he is still serving, of sixty months (five years) and ninety-one months (seven years, seven months), for felony battery and aggravated battery. In January 2002, the Department of Children and Families (DCF) filed a petition to terminate the parental rights of both parents. DCF alleged that the father would be incarcerated in state prison for a "substantial portion" of the time before the child will turn eighteen, and that the father's violent criminal history and behavior are evidence that continuing the relationship would be harmful to the child.2
The mother surrendered her parental rights, but the father opposed termination of his rights. During a September 2002 hearing on DCF's petition, B.C. testified that he anticipated completing his sentence within twenty-six to forty months after the hearing. He testified that he had attempted to support his daughter and develop a relationship with her, including through prison visits. However, according to B.C., the maternal grandmother, who wished to adopt the child and with whom the child was sheltered, had discontinued contacts between father and daughter. The trial court denied the petition for termination, concluding that the father's remaining incarceration of approximately four years is not a substantial portion of the time before the child, then four years old, will attain the age of eighteen years. The Fourth District reversed, concluding that the entire period of incarceration, rather than the period remaining to be served, was the correct measurement under section 39.806(1)(d)(1), and that the entire seven-year, seven-month sentence in this case constitutes a substantial portion of the child's eighteen-year minority. The Fourth District certified conflict with J.D.C., and A.W., in which the Second District held that under section 39.806(1)(d)(1) the trial court is to consider only future incarceration in determining whether incarceration constitutes a substantial portion of the time before the child turns eighteen. See B.C., 884 So.2d at 956
.
To explain our resolution of the certified conflict, as well as the related issue of how to quantify the statutory term "substantial portion," we first briefly trace the history of section 39.806(1)(d)(1), then discuss the Second and Fourth District court opinions construing its terms.
History of Section 39.806(1)(d)(1)
When enacted in 1997, the provision now codified in section 39.806(1)(d)(1) set out one of the three criteria that had to be met for termination of the parental rights of an incarcerated parent. See ch. 97-226, § 1, Laws of Fla. Subsection (1)(d) provided:
§ 39.464(1)(d), Fla. Stat. (1997) (emphasis supplied). Thus, the various sections were in the conjunctive. In 1998, section 39.464 was renumbered to section 39.806 during a reorganization of chapter 39. See ch. 98-403, § 88, Laws of Fla. The reorganization was prompted by the federal Adoption and Safe Families Act of 1997, Pub.L. 105-89, 111 Stat. 2115 (). See Fla. H.R. Comm. on Child. & Fams., HB 1019 (1998) Staff Analysis 1 (final June 17, 1998). The federal act sets time limits for developing a timely permanency plan for children who are in the state's care, provides for expedited termination of parental rights under certain circumstances, and uses funding to encourage state compliance with federal requirements.
In 1999, the Legislature revised section 39.806(1)(d) by making its three subsections independent alternatives rather than the previous conjunctive requirements. See ch. 99-193, § 45, Laws of Fla.3 The 1999 revision isolated the "substantial portion" language of subsection (1)(d)(1) from both subsection (1)(d)(2), which focuses on persons subject to lengthy sentences because of the severity of the crime or recidivism, and subsection (1)(d)(3), which requires a finding that continuing the relationship with the parent would be harmful to the child. Each of these separate subsections now provides an independent basis for termination of the parental rights of a parent incarcerated in a state or federal correctional institution:
§ 39.806(1)(d), Fla. Stat. (2003) (emphasis supplied). For any termination of parental rights under chapter 39, the trial court must find, in addition to the specific grounds contained in section 39.806, that termination is in the best interests of the child. See § 39.810, Fla. Stat. (2003). Each ground for termination must be established by clear and convincing evidence. See § 39.811(2), Fla. Stat. (2003). Further, this Court has held — although not specifically as to section 39.806(1)(d)(1) — that termination of parental rights requires a showing by clear and convincing evidence that reunification of parent and child poses a substantial risk of significant harm to the child, and that termination of rights be the least restrictive means of protecting the child from serious harm. See Fla. Dep't of Children & Families v. F.L., 880 So.2d 602, 608 (Fla.2004)
; Padgett v. Dep't of Health & Rehab. Servs., 577 So.2d 565, 571 (Fla.1991).
The Fourth District opinion in this case is one of several opinions in which the Second and Fourth districts have construed the language of section 39.806(1)(d)(1). In B.C.,...
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