N.R.-G. v. Dep't of Children & Family Servs.

• Decision Date: 27 April 2012
• Docket Number: No. 2D11–3961.,2D11–3961.
• Citation: 86 So.3d 574
• Parties: In the Interest of N.R.-G., a child. E.R.-J., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
• Court: Florida District Court of Appeals

86 So.3d 574

In the Interest of N.R.-G., a child.E.R.-J., Appellant,

v.Department of Children and Family Services and Guardian Ad Litem Program, Appellees.

No. 2D11–3961.

District Court of Appeal of Florida, Second District.

April 27, 2012.

Toni A. Butler of Alderuccio & Butler, LLC, Naples, for Appellant.

Jeffrey Dana Gillen, West Palm Beach, for Appellee Department of Children and Family Services.

Jennifer S. Paullin, Tavares, for Appellee Guardian ad Litem Program.

SILBERMAN, Chief Judge.

E.R.-J. seeks review of the order terminating his parental rights to his five-year-old daughter, N.R.-G., based on his failure to substantially comply with his case plan. We reverse because the Department of Children and Family Services failed to establish by clear and convincing evidence that the case plan noncompliance was substantial and not beyond his control.

In March 2007, eight-month-old N.R.-G. and her four-year-old brother A.G. were sheltered based on a report that the children's mother, V.G., was physically abusive toward A.G. At the time of the proceedings, the children were living with the Mother and E.R.-J., who is the father of N.R.-G. and will be referred to hereinafter as “the Father.” The Mother was charged with aggravated child abuse based on her treatment of A.G. She entered a plea, was sentenced, and was deported to Mexico. The Department was unable to locate A.G.'s father, M.B.-V., throughout the entire course of the proceedings.

The Mother and the Father consented to the petition for dependency. The allegations against the Father were based on excessive corporal discipline ¹ and neglect as evidenced by the children's tooth decay, ² the family's dirty living conditions, and N.R.-G.'s untreated labial adhesion. The Father subsequently completed the parenting requirements in his case plan and passed a home study. In October 2007, N.R.-G. was reunified with the Father, and A.G. was also returned to his custody.

The children were sheltered for a second time five months later in March 2008 after the Father moved to a residence his case manager deemed inappropriate. ³ This residence was a makeshift garage bedroom on the side of a home shared by several others. The home study did not reveal hazardous living conditions in the residence, and all of the home's residents passed a background check. However, the residence was deemed inappropriate because some of the male residents were also sleeping in the same room as the children. The Father subsequently relocated and obtained an approved homestudy, and N.R.-G. and A.G. were returned to his custody a second time in early 2009.

Shortly after the children were returned to his custody, the Father relocated with them to Oklahoma. The Father had moved out of state because the children's maternal grandfather offered to provide housing there and the Father was able to obtain employment there. But the Father moved without notifying the Department, and the children were reported missing. The Department had some difficulty locating the children because the Father delayed enrolling A.G. in school. When the Father attempted to enroll A.G. in school in August 2009, the Department located the children and returned them to Florida.

The Father's case manager met the children at the airport in Oklahoma and observed that A.G. was well-groomed. The case manager described three-year-old N.R.-G. as “unkempt” in that “[h]er hair wasn't combed, she had a chipped tooth, she had bruising that looked like old bruises on her legs, and her clothes fit snugly.” N.R.-G. was also wearing a diaper even though the case manager had been informed that she had been “almost completely” potty trained in foster care.

In September 2009, the Father attended a Department staffing and was informed that the Department was going to change his case plan goal to adoption based on the fact that the children had been sheltered for a third time. The Department amended the case plan as indicated. The Father, who was still residing in Oklahoma, hired a private attorney and attended a judicial review hearing on November 18, 2009. The court subsequently entered an order on the hearing which contained a provision precluding the Father from having contact with the children except by telephone. Two days later, the Father's attorney served a motion to amend the case plan goal to reunification. The Father returned to Florida permanently some time before the end of November.

On December 28, 2009, the Department filed a petition for termination of parental rights as to both children. The petition alleged the following grounds: abandonmentof N.R.-G. under section 39.806(1)(b), Florida Statutes (2009); engaging in conduct demonstrating that the Father's continuing involvement threatened N.R.-G.'s life, safety, well-being, or health under section 39.806(1)(c); and failing to substantially comply with the case plan under section 39.806(1)(e). Two days later, the court granted the Father's motion to amend the case plan, and the case plan goal was changed to reunification with a concurrent goal of adoption. A month later the Department refiled its petition for termination of parental rights.

In April 2010, the Father attended a judicial review after which the court determined he had partially complied with his case plan. The only tasks remaining for the Father to complete were to maintain stable housing and employment and to demonstrate that he had benefited from previous services. The Father thereafter provided his case manager with some pay stubs as proof of employment. The Father had housing, but he was living in close quarters with several roommates. And the Department had previously deemed a similar housing arrangement inappropriate based on the absence of private sleeping quarters for the children.

Due to the fact that a no-contact order had been entered, the Father did not visit with N.R.-G. until a supervised visit was arranged in May 2010 for purposes of a parenting assessment.⁴ This visit was observed by the Father's case manager and the licensed mental health care provider (LMHC) who conducted the parenting assessment. The visit took place for thirty minutes at a McDonald's, and it was the first time N.R.-G. had seen the Father since she had been removed from his custody approximately nine months previously.

Three-year-old N.R.-G. was extremely uncomfortable with the Father when he tried to engage her during the visit. Her body became tense, she stopped talking, she avoided eye contact with the Father, and she cried at one point. N.R.-G. did not respond to the case worker or LMHC in the same manner during the visit. Based on this response, the LMHC concluded that the Father's relationship with N.R.-G. was “distressed.” The LMHC determined that, without therapy, any subsequent visitation with the Father would be detrimental to N.R.-G. But with two to three months of therapy N.R.-G. may be able to successfully visit with the Father.

N.R.-G. was not provided any such therapy, and the no-contact order stayed in place while the parties awaited the adjudicatory hearing on the Department's termination petition. However, the adjudicatory hearing, which was originally scheduled for August 3, 2010, was delayed while the Department investigated a potential placement with the maternal grandfather in Oklahoma. For reasons not developed in the record, that placement was not approved.

In December 2010, the court ordered a second parenting assessment. The no-contact order was again lifted so that the Father could visit with N.R.-G., who was now four years old, for purposes of this assessment. The visit was conducted in January 2011 and was observed by Dr. Leslie Swanson, the psychologist who conducted the parenting assessment. The visit took place for an hour at a visitation center and it was the first time N.R.-G. had seen the Father since her thirty-minute visit at the McDonald's approximately eight months previously. N.R.-G. was nervous during the visit and did not return the Father's affections. She avoided making eye contact with the Father and was very distracted.

In February 2011, the Father attended a judicial review after which the court determined he was still only in partial compliance with his case plan. The court again concluded that the Father had not obtained stable housing and employment or demonstrated that he had benefited from previous services.

The adjudicatory hearing was held in May and June 2011, and the Mother and A.G.'s father, M.B.-V., were deemed to have consented to termination based on their failure to appear. The Department abandoned its allegations against the Father under sections 39.806(1)(b) and (c) and proceeded with termination under section 39.806(1)(e) based solely on his failure to substantially comply with his case plan.

At the adjudicatory hearing, the LMHC and Dr. Swanson testified regarding their observations of the Father's two visits with N.R.-G. Dr. Swanson also testified regarding a psychological evaluation of the Father she conducted as part of her parenting assessment. Based on the Father's responses to various hypotheticals she offered during the interview portion of the assessment, Dr. Swanson concluded that the Father had not learned about the importance of a structured environment and discipline during his parenting classes. But Dr. Swanson acknowledged that there was a language barrier that invalidated the results of part of her psychological evaluation. The Father speaks Spanish and little or no English. Although the Father was provided an interpreter, many of Dr. Swanson's questions did not translate well and she was unsure that he understood what she was really asking.

Nonetheless, Dr. Swanson concluded that the Father's prognosis for successful parenting was poor. Dr. Swanson believed that the Father had not benefited from services and was naïve about his ability to properly care for N.R.-G. Dr. Swanson was especially concerned because the Father could...