FL v. Department of Children and Families

Decision Date03 July 2003
Docket NumberNo. 4D02-4396.,4D02-4396.
Citation849 So.2d 1114
PartiesF.L., The Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
CourtFlorida District Court of Appeals

Felicia Shaman of Law Office of Felicia Shaman, P.A., Fort Lauderdale, for appellant.

No brief filed on behalf of appellee.

WARNER, J.

A mother, F.L., appeals the trial court's order terminating her parental rights to her seventh child. The trial court terminated her rights under sections 39.806(1)(c) and (i), Florida Statutes (2001). We hold that the Department of Children and Families ("DCF") failed to prove grounds for termination as authorized under section 39.806(1)(c). We further hold that section 39.806(1)(i), allowing for termination solely upon a showing that a parent's right to a prior child was terminated involuntarily, unconstitutionally shifts the burden to the parent to prove reunification would not be harmful to the child. We therefore reverse.

F.L. grew up in an abusive home, with a mother in prison and a father who abused substances and was physically abusive to F.L. By the time F.L. was in her late teens, she had three children and was in an abusive relationship with C.N., Sr.

In October 1997, DCF filed a petition for dependency as to F.L.'s first three children, C.H., T.S. and C.N. DCF alleged that she was observed intoxicated in the presence of the minor children and had medically neglected T.S. and C.N. F.L. consented to the petition and entered into a case plan for reunification. The plan consisted of assessments, participation in a parenting course, successful completion of a substance abuse course, completion of a domestic violence program, and maintaining stable housing and income for six months.

While this dependency action was pending, in early 1998, F.L. prematurely gave birth to Y.L. DCF immediately took custody of this child and filed a petition for dependency based upon medical neglect, due to the child's low birth weight, and the allegations made in the prior petition for dependency of F.L.'s other children. The court declared Y.L. dependent and provided a case plan for reunification similar to F.L.'s prior plan.

A fifth child, F.N., was born at the end of 1998, and DCF also took custody of this child. In the petition for dependency, DCF alleged F.L. had a history of child abuse and neglect and "has been uncooperative with any service which were [sic] offered." A petition for termination of rights also was pending as to the other children based upon medical neglect. F.N. was adjudicated dependent and provided a case plan for reunification again consistent with the prior plans.

Subsequent to F.N.'s adjudication of dependency, F.L. executed a voluntary surrender and consent for adoption as to the first four children in December 1999. F.L. had never complied with any of the case plans for reunification with these four children. In April 2000, DCF moved to terminate F.L.'s parental rights as to F.N. based upon the prior allegations of medical neglect as well as F.L.'s failure to obtain Medicaid for F.N. after her birth, the presence of domestic violence between F.L. and C.N, Sr., and the failure to substantially comply with her case plan.

F.L. had her sixth child, Cl.N. in March 2000. DCF took this child into custody on grounds that the mother medically neglected the child by refusing medical services, as well as the allegations regarding the five prior children. After mediation, F.L. agreed to voluntarily surrender her rights to F.N., while DCF agreed to offer her a case plan for Cl.N. In December 2000, F.L.'s rights to Cl.N. were terminated based upon the court's determination under section 39.806(1)(c) that F.L. consistently failed to substantially comply with her case plans and her continued involvement in the parent-child relationship would threaten the child's welfare.

Finally, C.N., Jr., the child at issue in this case, was born in January 2002. At the time, the father, C.N., Sr., was incarcerated on drug charges. Unlike the prior cases, F.L. accepted and received home health services after C.N., Jr.'s birth. A counselor visited F.L.'s home several times and observed that F.L. was providing C.N., Jr. with appropriate care, including seeking proper medical care, and that F.L. and the child had emotionally bonded. The counselor saw no danger to C.N., Jr.

When DCF learned of C.N., Jr.'s birth, representatives sought to locate F.L., and enlisted the services of Broward County Sheriff's Office Child Care Investigation unit ("BSO"). An investigator located F.L. and C.N., Jr. and observed nothing to cause concern regarding F.L.'s care. F.L. was receiving services, and the investigator saw no reason to remove the child from her care until she learned of the involuntary termination of F.L.'s rights as to Cl.N. BSO office policy dictated that a child be removed where the parent has had a prior involuntary termination. Yet, the initial shelter petition was denied by the court, and C.N., Jr. was returned to F.L.

BSO then sent an investigator to visit F.L. and set up referrals for "in-home" services. He found F.L. cooperative, and the child appeared to be fine. Because F.L. said she was moving, he did not set up any services. However, he believed F.L. should keep the child, as she appeared to be loving and caring.

Although DCF originally filed a petition for dependency, within a short period, and without offering a case plan, the agency filed a petition for termination of parental rights in June 2002. It alleged, pursuant to section 39.806(1)(c), that F.L. failed to comply with prior case plans leading to the termination of her rights to the other children. As a second ground for termination, DCF alleged that F.L.'s rights to Cl.N. were involuntarily terminated and constituted a ground for termination under section 39.806(1)(i). In the meantime, the court removed C.N., Jr. from F.L.'s custody but allowed her to have supervised visitation with the child.

At the final hearing in October 2002, DCF relied primarily on a service counselor, who had recently taken over F.L.'s files, to demonstrate the grounds for termination. Based upon those files, she testified that F.L. did not comply with any of her previous plans, outlining all of the tasks that F.L. failed to complete. However, the counselor admitted that DCF relied solely on F.L.'s history and not on any new allegations of neglect relating to C.N., Jr. In fact, she conceded that F.L. had made several efforts to improve herself and her ability to parent C.N., Jr., which she had not done with the other children. Nevertheless, she considered that F.L.'s efforts were insufficient and that her circumstances had not dramatically changed to ensure the safety of C.N., Jr., particularly because F.L. was still involved with C.N., Sr., and domestic violence was still a threat.

The counselor's opinion was consistent with the guardian ad litem who had been the guardian for several of F.L.'s other children. During direct examination she opined that F.L. could not provide a safe, nurturing environment for C.N., Jr. based upon her prior failure to parent her other children. However, on cross-examination, she admitted that she had seen changes in F.L. with C.N., Jr. and that F.L. and the child had bonded. During her visits the guardian found F.L.'s house clean and C.N., Jr., healthy. In fact, she had first recommended that DCF offer F.L. a case plan for reunification. She only changed her mind after meeting with the program's attorney, reviewing the file, and recognizing F.L. had made similar promises to change with respect to Cl.N. but had failed to follow through.

The BSO investigators, the initial DCF counselor assigned to F.L., and F.L.'s aunt all testified that F.L. and the child had bonded, that the home was clean, and that F.L.'s care of C.N., Jr. was appropriate. The counselor assisted in the visitation sessions between F.L. and C.N., Jr. and observed appropriate behavior and responses. The mother seemed genuinely concerned for her baby. On occasion, F.L. brought food and clothing for C.N., Jr. to assist his foster parents.

There were some concerns, such as the baby's sleeping quarters and the inability of the counselor to finish a home study because F.L.'s sister, with whom she resided, did not provide a social security number. However, when DCF decided to petition for termination of parental rights, none of these concerns were pursued, nor were other referrals for services provided.

While DCF did not offer a case plan for reunification, F.L. pursued courses on her own. With a counselor from Keeping Families Together, F.L. worked on parenting skills. The counselor administered a parenting inventory and scored F.L. within normal limits in all categories except "power and independence" where her score was low. In all, the counselor had twenty sessions with the mother focusing on parenting skills, as well as independence issues. At trial, DCF representatives did not consider this sufficient because F.L.'s prior case plans required her to complete a thirty-six week parenting course.1

In addition, F.L.'s attorney referred her to a substance abuse evaluation. Based upon F.L.'s self-reporting of her history, the therapist concluded that F.L. was not chemically dependent and did not recommend any further drug or alcohol treatment. After this initial evaluation, the therapist received additional information relating to F.L.'s history with DCF, her other children, and their fathers' drug and alcohol abuse, which was inconsistent with some of F.L.'s self-reported history. Nevertheless, the therapist did not alter her recommendation but rather indicated that she would need to make another assessment with the "new" information available.

F.L.'s previous plans also required her to obtain domestic violence counseling, which she did not get in the past. After the termination was filed in this case, she began attending...

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