S.Q. v. Department of Health and Rehabilitative Services, 94-4100

• Decision Date: 31 January 1997
• Docket Number: No. 94-4100,94-4100
• Citation: 687 So.2d 319
• Parties: 22 Fla. L. Weekly D327 S.Q., Mother of S.Q. a child, Appellant, v. The DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
• Court: Florida District Court of Appeals

Page 319

687 So.2d 319

22 Fla. L. Weekly D327

S.Q., Mother of S.Q. a child, Appellant, v. The DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.

No. 94-4100.

District Court of Appeal of Florida First District.

Jan. 31, 1997.

Noel G. Lawrence, Jacksonville, for Appellant.

Robin Whipple-Hunter, Assistant District Legal Counsel, The Department of Health and Rehabilitative Services, Jacksonville, for Appellee.

JOANOS, Judge.

S.Q., the natural mother of a child adjudicated dependent, appeals an order terminating her parental rights to her son, S.Q., now age ten. The mother contends (1) the trial court failed to give adequate consideration to the applicable statutory factors, (2) the Department of Health and Rehabilitative Services (HRS) failed to present clear and convincing evidence that the mother was not in substantial compliance with the terms of the permanent placement plan, and (3) the trial court improperly terminated the mother's parental rights solely on the basis of the mother's alleged non-compliance with the permanent placement plan. ¹ We reverse and remand for further proceedings.

In January 1992, S.Q. was taken into custody and placed with a non-relative. ² A dependency petition was filed, alleging that S.Q. was at risk of physical abuse by his mother, because the mother physically abused S.Q.'s sibling by striking her about the head and face and pulling her hair. In March 1992, both children were adjudicated dependent based upon the mother's stipulation. The whereabouts of S.Q.'s father was unknown. Under a disposition order filed in June 1992, the mother was ordered to obtain a psychiatric examination and follow through with all recommended mental health counseling or psychiatric treatment prior to any visitation with her children, to have a drug and alcohol evaluation and follow through with all recommended counseling, to enroll in and successfully complete parenting skills classes with at least an eighty-eight percent attendance, and to obtain and maintain stable employment and housing for a reasonable time. The order specified the mother was to have no contact with the children, including no telephone contact.

Under a permanent placement plan approved by the court, the mother was directed to perform numerous tasks, including: (1) submit to a psychological evaluation within six weeks with a psychologist approved by the Department; (2) sign a release of information with the evaluating psychologist; (3) initiate compliance with the recommendations of the psychological evaluation within two weeks of having the recommendations explained to her; (4) schedule an appointment for mental health counseling within two weeks of receipt of the agreement with a therapist approved by the Department; (5) abide by the treatment; (6) provide the Department with periodic reports of treatment progress, with reports to be furnished by either the mother or the therapist; (7) follow the recommendations of the therapist; (8) participate in family therapy when the therapist deemed appropriate; (9) schedule parenting classes within two weeks of receipt of the agreement; (10) successfully complete parenting classes and provide the Department with documentation of successful completion; (11) demonstrate appropriate parenting skills during visitation; (12) obtain and maintain stable living arrangements; (13) provide documentation of a stable residence through rent receipts and utility bills; (14) advise the HRS counselor of any other residents in the home; (15) apply to H.U.D., the local City Housing Authority, or other housing agencies within two weeks of receipt of the permanent placement plan; (16) obtain a verifiable source of income adequate to the child's needs, and document all sources of income; (17) be responsible for her own transportation to counseling appointments, visitation, and employment; and (18) maintain weekly contact with the HRS counselor by telephone, face-to-face visits, or by letter, and advise the counselor of a change of address within three days of the change.

The record contains documentation of the mother's employment and verifiable wages; documentation establishing that the mother underwent a diagnostic psychiatric interview on June 20, 1992; documentation that the mother successfully completed parenting classes conducted by the Children's Home Society with a perfect attendance record; and documentation from HRS that an abuse investigation of the mother had been closed without classification, i.e., the report was classified as "unfounded." In addition, the record contains letters and notices evincing the mother's continued efforts to find permanent employment, and letters from former neighbors of the mother stating the mother was a good tenant who kept her apartment clean and neat, and a good mother who monitored her children's activities. The record also contains a receipt issued by a CYF counselor on December 22, 1992, acknowledging receipt of toys and other wrapped gifts purchased by the mother for her son. Since the mother was denied all contact with her child, she was forced to rely upon HRS to deliver the gifts.

A judicial review and case plan update filed January 8, 1993, indicated the mother was not allowed any visits with her child until a psychological evaluation was received recommending such visitation. The case plan update further stated the mother would not sign release forms for release of the psychological evaluation to HRS, the mother had displayed some emotional instability and was not willing to cooperate with HRS, and though the mother called the HRS office frequently to check on her son, she would not provide HRS with her telephone number or address. ³

On September 15, 1993, the mother underwent a second psychiatric evaluation performed by Dr. Virzi. The report submitted by Dr. Virzi stated the mother was highly anxious and under an extreme amount of stress due to her desire to restore her relationships with her children. Dr. Virzi found the mother's attention span and concentration to be in normal range, and she appeared to be of normal intelligence. Although Dr. Virzi noted a strong paranoid theme, he concluded the paranoia could not be ascertained with any degree of certainty, in light of the trauma the mother experienced with the loss of her children. The doctor concluded there was nothing to indicate the mother had any severe psychiatric illness, but there were "soft signs" that she had some psychiatric problems which "need to be further elucidated." Dr. Virzi recommended that the mother enter into an observation process and day treatment under Kevin Lynch, psychologist, to determine the extent of her personality assets and weaknesses in regard to child rearing. The mother's clinical profile was within normal limits and no clinical diagnosis was provided.

In accordance with Dr. Virzi's recommendation, the mother was seen by Kevin Lynch, clinical supervisor at Gateway Treatment Center for Alcoholism/Chemical Dependency. Mr. Lynch's report established that the mother followed his recommendation that she undergo a psychiatric evaluation, and he found the mother was not dependent upon, and did not abuse, alcohol or other drugs.

In January 1994, the Department filed a petition for termination of parental rights. The petition alleged that despite provision of a performance agreement approved by the court, the mother was guilty of continuing abuse or neglect of the child. ⁴ During the pretrial proceedings, the mother advised the trial court she had tried to comply with every court order and believed she had done so, and she could not understand why she was not permitted to have custody of, or even visitation with, her children. The mother stated she had undergone three psychological evaluations, including one performed by a psychiatrist selected and paid by the mother. ⁵ When the trial court questioned the reason for denying the mother all visitation with her child, an HRS counselor explained the prior judge's order specified that the mother would not be allowed visitation until she released information to the referral party. The HRS counselor advised the successor judge that the mother signed a release, and was not responsible for the failure to release information. Rather, the evaluation team failed to provide the mother with the proper form. As a result of the evaluation team's conduct, information had not been released to HRS and other parties.

Thereafter, the mother underwent a court-ordered evaluation by Dr. Miller, psychiatrist. Dr. Miller's report set forth a clinical impression of the mother's condition as "schizophrenic disorder, paranoid type." Dr Miller stated the mother's defenses were very rigid, but if she found she could surrender herself to treatment, "some improvement in her overall adjustment would probably follow." Based upon Dr. Miller's clinical impression, the trial court refused to permit unsupervised visitation, but apparently considered a grant of supervised visitation. An HRS representative opposed initiation of any visitation, on the ground that the Department was ready to proceed on termination of parental rights.

The termination proceeding took place in October 1994. Dr. Miller testified that schizophrenia disorder, paranoid type, is responsive to treatment. He opined that the mother was unable to provide sustained and consistent care of children at the time of his evaluation, describing her as "tenuously and precariously holding herself together." Dr. Miller explained that remissions occur in schizophrenia disorder, and visitation would be helpful rather than injurious to the children during a period of remission. He testified further that the mother has many positive features: she is intelligent, she was trying to do things to adapt, and she was working. According to Dr. Miller, a reasonable trial period to ascertain whether the mother was amenable to treatment would be a minimum of three months and a maximum of...