M.M.W. v. J.W.
| Docket Number | 3D21-2419 |
| Decision Date | 03 August 2022 |
| Parties | M.M.W., The Mother, Appellant, v. J.W., The Father, Appellee. |
| Court | Florida District Court of Appeals |
Not final until disposition of timely filed motion for rehearing.
An appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 21-15143 Angelica D. Zayas, Judge.
Leslie Ann Ferderigos (Winter Park), for appellant.
Abramowitz and Associates, and Jordan B. Abramowitz, for appellee.
Before LOGUE, SCALES, and MILLER, JJ.
Appellant M.M.W., the mother, challenges a final judgment terminating her parental rights to her two minor children, L.S.W. and A.C.W. Unlike most cases involving the termination of parental rights, the proceedings below were commenced by way of a private petition filed by the father, appellee, J.W., on the heels of acrimonious dissolution proceedings. Finding that adequate statutory grounds for termination were not pled or proven, we reverse.
The parties wed in 2011, and their union yielded two children L.S.W. and A.C.W., both of whom are currently under the age of nine. In 2018, the mother filed a petition for dissolution of marriage. Contentious litigation culminated in a stipulated, court-approved marital settlement agreement and parenting plan. Pursuant to the terms of the stipulation, the parents shared parental responsibility and equal timesharing. The parents agreed to abstain from alcohol, prescription drug abuse, or the use of illegal intoxicants both during and for the twenty-four-hour period preceding their respective timesharing. The mother further agreed to attend therapy and submit to daily drug and alcohol testing for ninety days.
This arrangement remained in effect for approximately one year but the parties' relationship devolved. In early May of 2019, the father filed an ex parte motion for full timesharing. In the motion, he alleged the mother failed to retrieve the children from school, purportedly as the result of an unconfirmed car accident, exchanged hostile and threatening text messages with the father, and transported the children to school tardy on a frequent basis.
The court granted the motion and, on May 16, 2019, ordered a psychological evaluation and substance abuse testing for the mother. The testing yielded positive results for cocaine and alcohol, and a mid-January 2020 evaluation performed by a clinical psychologist concluded the mother suffered from alcohol and other stimulant use disorder, along with associated mental health diagnoses, including anxiety and depressive disorder. The psychologist recommended residential treatment.
On May 18, 2020, the parties entered into a post-judgment mediated settlement agreement. In the agreement, the mother acknowledged she suffered from substance abuse disorder, and the parties agreed that Family Court Services personnel would endeavor to select an appropriate inpatient treatment program. The agreement separately required the mother to continue to attend outpatient treatment and comply with all further recommendations and treatment plans.
The father was endowed with exclusive decision-making authority and full timesharing pending the mother's compliance with one year of random drug and alcohol screening. The mother was further ordered to pay prospective child support, along with significant arrearages.
The mother did not enroll in an inpatient facility or submit regularly to testing. She did continue to attend therapy with various providers.
The father reported that he believed he observed the mother under the influence on multiple occasions, and, in October of 2020, the mother attended a remotely conducted group therapy session while apparently under the influence alcohol or another substance. When questioned during a subsequent wellness check, she attributed her condition to anti-anxiety medication.
Shortly thereafter, the mother reported the father to the Department of Children and Families, alleging abuse and neglect. The Department declined to take any action.
On March 25, 2021, the father filed a private petition to terminate the mother's parental rights. In the petition, the father alleged abandonment under section 39.806(1)(b), Florida Statutes (2020), and chronic substance abuse under section 39.806(1)(j), Florida Statutes. The mother was not offered a case plan.
The case proceeded to an expedited final hearing, at the conclusion of which the court granted the petition, citing chronic substance abuse under section 39.806(1)(j), Florida Statutes, and conduct threatening the lives, safety, well-being, or health of the children irrespective of services under section 39.806(1)(c), Florida Statutes. The instant appeal ensued.
As relevant to our analysis, on appeal, the mother contends: (1) her due process rights were violated because the final order terminated her parental rights on unpled statutory grounds; (2) there is no competent, substantial evidence establishing she failed or refused to submit to available treatment; and (3) the father failed to establish termination was the least restrictive means to protect the children from harm.
Cases "involving the State's authority to sever permanently a parent-child bond[] demand[] the close consideration the Court has long required when a family association so undeniably important is at stake." M.L.B. v. S.L.J., 519 U.S. 102, 116-17 (1996) (footnote omitted); see Santosky v. Kramer, 455 U.S. 745, 787 (1982) (Rehnquist, J., dissenting) (). "While a trial court's decision to terminate parental rights must be based upon clear and convincing evidence, our review is limited to whether competent substantial evidence supports the trial court's judgment." J.G. v. Dep't of Child. & Fams., 22 So.3d 774, 775 (Fla. 4th DCA 2009). This review is "highly deferential," In re N.F., 82 So.3d 1188, 1191 (Fla. 2d DCA 2012), and a lower court ruling will be affirmed "unless clearly erroneous or lacking in evidentiary support." N.L. v. Dep't of Child. & Fam. Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003). Conversely, we review a claim of deprivation of due process in termination proceedings de novo. See A.M. v. Dep't of Child. & Fams., 223 So.3d 312, 315 (Fla. 4th DCA 2017).
Like many states, Florida also allows a private party to file and prosecute a petition for termination of parental rights. [1] See § 39.802(1), Fla. Stat. ( a petition may be filed "by the [Department of Children and Families], the guardian ad litem, or any other person who has knowledge of the facts alleged or is informed of them and believes that they are true"); Cashion v. Dep't of Health & Rehab. Servs., 630 So.2d 1244, 1245 (Fla. 3d DCA 1994) (). In circumstances where one parent has assumed a prosecutorial role, statutory considerations unique to single-parent terminations are implicated.
The grounds for single-parent terminations are limited to those contained within section 39.811(6), Florida Statutes. Abandonment, as pled by the father in his petition, is not among them. However, both statutory factors identified by the trial court-chronic substance abuse and conduct that threatens the lives, safety, well-being, or health of the children irrespective of services-are authorized bases for single-parent termination. See § 39.811(6)(e), Fla. Stat. Thus, we examine each of the mother's assertions of error, in turn.
A petitioning party must first prove at least one of the enumerated statutory grounds for termination of parental rights by clear and convincing evidence. N.B. v. Dep't of Child. & Fams., 289 So.3d 29, 32 (Fla. 3d DCA 2019). The trial court must then consider whether termination is in the best interests of the child. Finally, because the fundamental right of parents to procreate and make decisions regarding the care, custody, and control of their children is recognized by both the Florida Constitution and the United States Constitution, and the right "does not evaporate simply because they have not been model parents," Santosky, 455 U.S. at 753, a petitioning party must further prove that termination is "the least restrictive means of protecting the child from serious harm." Statewide Guardian Ad Litem Program v. A.A., 171 So.3d 174, 177 (Fla. 5th DCA 2015).
The least restrictive means analysis springs from due process considerations. See S.M. v. Fla. Dep't of Child. & Fams., 202 So.3d 769, 778 (Fla. 2016). When the state infringes upon this constitutionally protected relationship, it must do so in a narrowly tailored manner. A.J. v. K.A.O., 951 So.2d 30, 32-33 (Fla. 5th DCA 2007). Thus, "the least restrictive means prong is implicit in Florida's statutory scheme based on the Court's obligation to construe statutes in a constitutional manner." S.M., 202 So.3d at 778.
In proceedings culminating in termination, regardless of who files suit, "the end result is the same-the state, via the judicial branch, terminates a parent's constitutionally-protected parental rights." A.J., 951 So.2d at 33. Consequently, least restrictive means applies equally to privately prosecuted termination petitions. Id.
The Florida Supreme Court has cautioned, however, that the least restrictive means prong "is not intended to preserve a parental bond at the cost of a child's future." S.M., 202 So.3d at 778 (quoting Dep't of Child. & Fams. v. B.B., 824 So.2d 1000, 1009 (Fla 5th DCA 2002)). "Rather[,] . . . it simply requires that measures short of termination should be utilized if such...
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