T.B. v. Dep't of Children & Families

• Decision Date: 01 July 2020
• Docket Number: No. 4D19-3862,4D19-3862
• Citation: 299 So.3d 1073
• Parties: T.B., the father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian AD Litem, Appellees.
• Court: Florida District Court of Appeals

299 So.3d 1073

T.B., the father, Appellant,

v.DEPARTMENT OF CHILDREN AND FAMILIES and Guardian AD Litem, Appellees.

No. 4D19-3862

District Court of Appeal of Florida, Fourth District.

[July 1, 2020]

Ashley Nicole Minton of Minton Law, P.A., Fort Pierce, for appellant.

Andrew Feigenbaum, Appellate Counsel, Children's Legal Services, West Palm Beach, for appellee, Department of Children and Families.

Thomasina F. Moore, Statewide Director of Appeals, and Samantha C. Valley, Senior Attorney, Appellate Division, Florida Statewide Guardian Ad Litem Office, Tallahassee, for Guardian Ad Litem.

FORST, J.

One definition of the term Kafkaesque is "having a nightmarishly complex, bizarre, or illogical quality." Kafkaesque , Merriam-Webster's Online Dict. https://www.merriam-webster.com/dictionary/Kafkaesque> (last visited June 23, 2020). This is the world of Appellant T.B., the father of the two young children (born in 2017 and 2018) involved in this termination of parental rights ("TPR") case. Appellant's parental rights to these children were terminated because, though he complied with Department of Children and Families’ ("DCF") case plan and with the instructions of DCF case workers, he occasionally and (arguably) unavoidably came into contact with the children's mother, although mere contact with the mother outside the presence of the children was not prohibited by the case plan .

We conclude that the trial court's determination that DCF established, by clear and convincing evidence, the grounds asserted for termination of Appellant's parental rights, is not supported by competent substantial evidence. Thus, we reverse.

Background

Appellant's travails started shortly after the birth of his second child in 2018. Both children were sheltered amidst allegations of domestic violence between Appellant and the mother of the children. In August 2018, DCF developed a case plan with the goal of reunification of the children with both parents. Over the course of the next ten months, Appellant met nearly all of the benchmarks of the various case plans he was provided: he completed a batterer's intervention program and parenting classes, and he held two jobs and provided a stable home for the children. There were occasional instances of domestic violence, but in every instance, it was the mother who was the aggressor, and Appellant was the victim.

Following the first judicial review hearing in January 2019, the following events occurred (and are noted in the trial court's order and/or the testimony of witnesses at the November 2019 TPR hearing):

• Both Appellant and the mother testified that their romantic relationship ended, and the mother moved out of Appellant's home "around" March 2019.

• The mother threw a brick through the window of Appellant's home in April 2019. Appellant called the police. The mother was subsequently convicted on the charge of criminal mischief.

• On two occasions in June 2019, the case manager saw Appellant walking with the mother on Orange Avenue (one of the main streets in Fort Pierce). Appellant testified that he has occasionally, and unintentionally, run into the mother at a bus stop or on a bus route.

• In late August 2019, Appellant arrived at his home and found that the mother had "gained access illegally to [Appellant's] home." Appellant contacted the police and asked that the mother be removed from the premises. He also contacted the case manager to report the incident.

• On September 5, 2019, Appellant filed a "Petition for Injunction for Protection Against Stalking" against the mother. This petition was denied by the court.

• A visitation field support worker testified that, in October 2019, while supervising the mother's visits with the children, she witnessed Appellant and the mother communicating via "Facetime." The worker clarified, however, that Appellant interacted only with the children.

• Appellant sent the mother a video of one of his visitations. Appellant testified that this video had been sent to the children's maternal grandmother (with whom the mother was living).

In April 2019, DCF filed a petition for TPR against both parents of the children, and a hearing was convened in November 2019. The mother's parental rights were terminated, and her appeal was dismissed for lack of prosecution. With respect to Appellant, the court found he had completed domestic violence services, continued to maintain stable income and housing, and regularly visited and bonded with the children. The trial court additionally noted that Appellant had taken action to prevent the domestic violence: "he's done everything he could to prevent the domestic violence, including seeking injunction, notify[ing] the police, notify[ing] ... his caseworker of the ongoing domestic violence [and t]here has been no testimony that he has been the aggressor."

Appellant acknowledged that the mother's actions were harmful to the children and he could not control her actions. He further testified his relationship with the mother had ended and that he had not had any unnecessary and voluntary involvement with her since the relationship ended. He indicated his willingness to consent to a court order requiring the mother to stay away from him and his home, and he also volunteered to catch another bus to avoid the mother, if necessary.

The court nevertheless found that Appellant "voluntarily continu[ed] to have substantial involvement with the Mother which was not necessitated by any explained circumstances." Accordingly, the court determined that Appellant's parental rights must be terminated, reasoning:

If the Father is voluntarily continuing any relationship with the Mother despite the provision of services to him and he has reason to know the Mother continues to be a danger to the Children, then his rights should be terminated pursuant to § 39.806(l)(c) because he has shown he cannot change his behaviors that helped cause the Children's shelter despite the provision of services. If the Father is continuing a relationship with the Mother and the 2nd Case Plan requires him to discontinue that relationship because Mother continues to be a danger to the Children, then his rights should be terminated pursuant to § 39.806(1)(e)2 because he failed to achieve the 2nd Case Plan's outcome and is voluntarily engaging in conduct - maintaining a relationship with the Mother - which endangers the Children in the home. The Court finds the Department proved by clear and convincing evidence the parental rights of [Appellant] to the Children should be terminated pursuant to Sections 39.806(l)(c) and (e)2, Florida Statutes.

On appeal, Appellant asserts the trial court erred in terminating his parental rights under sections 39.806(1)(c) and 39.806(1)(e) 2. and in finding that termination was in the children's best interest and was the least restrictive means to protect the children.

Analysis

"The standard of review of the final judgment terminating parental rights is whether the trial court's finding that there is clear and convincing evidence to terminate parental rights is supported by competent, substantial evidence." C.S. v. Dep't of Children & Families , 178 So. 3d 937, 940 (Fla. 4th DCA 2015). "The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy." J.F. v. Dep't of Children & Families , 890 So. 2d 434, 439 (Fla. 4th DCA 2004).

"[W]e look at the evidence presented, not in the light most favorable to the parents, but in a neutral manner in which we must assess whether competent substantial evidence supports the trial court's conclusion ...." D.G. v. Dep't of Children & Families , 77 So. 3d 201, 207 (Fla. 4th DCA 2011). "While a trial court's discretion in child welfare proceedings is very broad, reversal is required where the evidence is legally insufficient to sustain the findings of the trial court." R.S. v. Dep't of Children & Families , 881 So. 2d 1130, 1132 (Fla. 4th DCA 2004).

Termination under § 39.806(1)(c)

As noted above, the trial court based the termination on two statutory grounds. The first is section 39.806(1)(c), Florida Statutes (2019), which provides that "[g]rounds for termination of parental rights may be established"

[w]hen the parent or parents engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services. ...

§ 39.806(1)(c), Fla. Stat. (2019).

To terminate a parent's rights under this subpart, three evidentiary requirements must be met:

(1) that the child's life, safety, or health would be threatened by continued interaction with the parent, regardless of the provision of services; (2) that there is no reasonable basis to believe the parent will improve; and (3) that termination is the least restrictive means of protecting the child from serious harm.

T.O. v. Dep't of Children & Families , 21 So. 3d 173, 179 (Fla. 4th DCA 2009).

We have held that termination under subpart 39.806(1)(c) is termination "based on prospective abuse or neglect." Q.L. v. Dep't of Children & Families , 280 So. 3d 107, 113 (Fla. 4th DCA 2019). "Essentially, the trial court is asked to look at the parent's current medical condition or past behavior and predict whether the parent will likely harm the child in the future." Id. at 113-14.

"[T]he evidence must show a parent's past conduct or current mental condition makes the risk of future harm to the child likely." D.B. v. Dep't of Children & Families , 87 So. 3d 1279, 1282 (Fla. 4th DCA 2012) (emphasis added). The court must determine that "any provision of services would be futile or that the child would be threatened with harm, despite any services provided to the parent." W.L. v. Dep't of Children & Families , 172 So. 3d...