Opinion
No. 3D18-2361
06-26-2019
I.T., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
Law Office of Richard F. Joyce, P.A., and Richard F. Joyce, for appellant. Karla Perkins, Miami, for appellee the Department of Children and Families; Thomasina Moore, and Laura J. Lee (Tallahassee), for appellee the Guardian ad Litem Program.
Law Office of Richard F. Joyce, P.A., and Richard F. Joyce, for appellant.
Karla Perkins, Miami, for appellee the Department of Children and Families; Thomasina Moore, and Laura J. Lee (Tallahassee), for appellee the Guardian ad Litem Program.
Before SCALES, HENDON, and MILLER, JJ.
MILLER, J.
The mother, I.T., challenges two final judgments, contending that the Department of Children and Families ("the Department") failed to present clear and convincing evidence to support the termination of her parental rights as to four of her five children, N.S., C.S., D.M.T., and I.A.V. We agree and reverse. FACTS
The United States Supreme Court "has mandated an intermediate standard of proof—‘clear and convincing evidence’—when the individual interests at stake in a state proceeding are both ‘particularly important’ and ‘more substantial than mere loss of money’... the Court has deemed this level of certainty necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with ‘a significant deprivation of liberty’ or ‘stigma.’ " Santosky v. Kramer, 455 U.S. 745, 756, 102 S. Ct. 1388, 1396, 71 L. Ed. 2d 599 (1982) (internal citations omitted).
After a sibling was discovered with a bruise on her face, N.S., C.S., and D.M.T. were sheltered. The Department alleged the mother struck the sibling, causing the bruise on the child, and further alleged that the child was engaging in a pattern of absenteeism from school and exhibiting poor academic performance. Further investigation revealed that the mother had left her children in the care of relatives and friends on a periodic basis.
The children were sheltered on different dates, but based on the same allegation. At the time of the shelter hearing, D.M.T. was in Puerto Rico visiting the paternal grandmother.
N.S., C.S., and D.M.T. were placed in the custody of relatives and, on May 16, 2016, were adjudicated dependent, pursuant to a consent decree. The mother was offered a case plan with a stated primary goal of reunification. The case plan required that the mother attend parenting classes, instruction for non-offending parents of sexually abused children, substance abuse treatment, trauma-informed individual therapy, dyadic therapy, and visitation, and maintain stable housing and employment. The court accepted the case plan, and ordered the mother to undergo a psychological evaluation to address her specific treatment needs. Shortly thereafter, the mother became pregnant with I.A.V. Immediately after I.A.V. was born, she too was sheltered, based upon a finding of probable cause that she was at risk of harm due to the purported abuse of her sibling. I.A.V. was placed in medical foster care and was also adjudicated dependent.
According to the court records, one of the children was sexually abused by her "cousins." It is unclear whether the abuse occurred during the child's placement in foster care with paternal relatives amid the pendency of the case.
The record is devoid of any evidence demonstrating that the mother has abused or abuses controlled substances. Substance abuse treatment was required because the mother was prescribed benzodiazepine by a licensed physician immediately prior to the birth of I.A.V.
In October 2016, the mother submitted to the court-ordered psychological evaluation. The evaluating psychologist, Michael DiTomasso, Ph.D., diagnosed her with low intellectual functioning and possible bipolar disorder, although she was asymptomatic. Relying upon past behavioral patterns and developmental challenges, the psychologist further indicated her prognosis for responding to services was "low."
The mother began experiencing financial problems and sought to pay a reduced amount for the court-ordered therapy. The trial court entered an order requiring a "sliding scale" for payment and the completion of a "fee agreement."
With the exception of some dyadic therapy sessions, the mother saw through all designated treatment. In early 2017, in recognition of the mother's progress in complying with the assigned therapy, the trial court converted her therapeutic visitation with the children to supervised visitation. By the end of the same year, the mother had duly attended forty-eight individual therapy sessions and exhibited improvement after undergoing several dyadic therapy sessions. On all accounts, she was successfully progressing with her required case plan.
A later recommendation sought to convert supervised visitation to unsupervised visitation. This transition was never effected.
In 2018, the mother lost her employment and was served with an eviction notice. Despite reasonable efforts, she was unable to obtain local employment that was sufficiently remunerative to allow her to satisfy monthly rent for a housing unit that would accommodate the children. She initially concealed her dire financial situation from the Department, but eventually requested assistance. Her case manager did not make temporary emergency arrangements, but instead provided her with a list of homeless shelters. Upon inquiry at the shelters, she was informed the shelters were at full capacity. The mother expended efforts to exercise court-ordered supervised visitation, however, the geographic placement of the children, along with restrictions on telephonic contact and hours of visitation, imposed by the caregivers, impeded consistent contact.
Without informing the children, the mother relocated to North Carolina, and began working for a division of Goodwill Industries International, Inc. The ensuing wages she earned were woefully insufficient to propel her above the federal poverty level. After less than two months, she again relocated, this time to Kentucky, to accept an employment offer at Amazon. There, she would earn a significantly higher salary. The mother moved into the home of her brother and sister-in-law and began paying an affordable rent. In Kentucky, the mother's attempts at maintaining telephonic contact with the children were thwarted by the caregivers. Due to overwhelming economic and logistic constraints, she was unable to exercise visitation.
The mother testified that she avoided bidding the children farewell due to the emotional anguish she experienced in separation.
On April 16, 2018, despite all prior case plans, including the case plan in effect at the time, stating a primary goal of reunification, the Department filed a petition seeking the termination of I.T.'s parental rights. On June 8, 2018, the Department filed an amended petition. On August 3, 2018, the Department filed a second amended petition. On August 14, 2018, the trial court entered an order, signed nunc pro tunc to May 3, 2018, approving a case plan, modifying the stated reunification goal to a November 2018 adoption goal. On that same day, the trial court entered an order on judicial review/permanency review, signed nunc pro tunc to May 3, 2018, stating the compelling reasons for the modified adoption goal were that "[t]he mother is only in partial compliance because she has not completed dyadic therapy and does not have housing or employment." Despite listing adoption as the goal, rather than reunification, inexplicably, the trial court ordered the Department to "assist the mother in setting up dyadic therapy in [Kentucky]."
As the mother had both housing and employment from June 2018 to the date of the termination of parental rights hearing, at the time the trial court approved the case plan designating the goal of adoption, the grounds alleged in support of termination were stale.
Shortly thereafter, the trial court conducted a protracted adjudicatory hearing on the petition for termination of parental rights. The Department relied on Dr. DiTomasso's two-year old psychological evaluation to demonstrate the mother was not amenable to further services, and cited the mother's lack of employment, failure to maintain stable housing, and sporadic visitation in order to establish risk to the children. Following the hearing, the court entered two final orders terminating the mother's parental rights as to all four children. The trial court relied upon four grounds for termination, finding:
[T]he Petition to be proven on the following grounds: irrespective of services as to the Mother pursuant to section 39.806(1)(c), Florida Statutes ; failure to comply with the case plan as to the
Mother pursuant to section 39.806(1)(e)(1), Florida Statutes ; twelve out of twenty-two months as to the Mother pursuant to section 39.806(1)(e)(3), Florida Statutes ; and three or more removals pursuant to section 39.806(1)(l ), Florida Statutes.
The latter statutory provision is inapplicable to the instant case, as there was a single removal of the three eldest children, albeit effected on different dates. See § 39.806(1)(l ), Fla. Stat. ("On three or more occasions the child or another child of the parent ... has been placed in out-of-home care ... and the conditions that led to the child's out-of-home placement were cause by the parent."). Thus, we decline to address the mother's constitutional challenge to this ground for removal, and reject the trial court's reliance on this statutory ground. See In re Holder, 945 So. 2d 1130, 1133 (Fla. 2006) (noting courts should exercise a general avoidance of constitutional questions when decisions on them are unnecessary).
The instant appeal ensued.
STANDARD OF REVIEW
We review a trial court's judgment terminating parental rights for competent, substantial evidence. C.G. v. Dep't of Children & Families, 67 So. 3d 1141, 1143 (Fla. 3d DCA 2011) (citing T.V. v. Dep't of Children & Family Servs., 905 So. 2d 945, 946 (Fla. 3d DCA 2005) ). A "finding that evidence is clear and convincing enjoys a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in evidentiary support." Id. (quoting D.P. v. Dep't of Children & Family Servs., 930 So. 2d 798, 801 (Fla. 3d DCA 2006) ). Thus, our review of a termination of parental rights case is "highly deferential." Id. (quoting D.P., 930 So. 2d at 801 ).
As our sister court explained in an analogous context,
Even though [the Department has] a heightened standard of proof ... our standard of review is unchanged ... "In civil cases involving the burden of clear and convincing evidence, an appellate court may not overturn a trial court's finding regarding the sufficiency of the evidence unless the finding is unsupported by record evidence, or as a matter of law, no one could reasonably find such evidence to be clear and convincing. Accordingly, the appellate court's function is not to conduct a de novo proceeding or reweigh the evidence by determining independently whether the evidence as a whole satisfies the clear and convincing standard, but to determine whether the record contains competent[,] substantial evidence to meet the clear and convincing evidence standard."
Matrix Emp. Leasing v. Pierce, 985 So. 2d 631, 634 (Fla. 1st DCA 2008) (quoting McKesson Drug Co. v. Williams, 706 So. 2d 352, 353-54 (Fla. 1st DCA 1998) ).
ANALYSIS
"It is a basic tenet of our society and our law that individuals have the fundamental constitutionally protected rights to procreate and to be a parent to their children." D.M.T. v. T.M.H., 129 So. 3d 320, 334 (Fla. 2013). "These constitutional rights are recognized by both the Florida Constitution and the United States Constitution." Id. "The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599 (1982). "Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life." Id. at 753, 102 S. Ct. at 1395. "In application, as our Supreme Court has held, this means that when the [S]tate infringes upon [the right to parent], it must do so in the ‘most narrowly-tailored’ and ‘least intrusive’ manner consistent with the object to be accomplished." N.S. v. Dep't of Children & Families, 36 So. 3d 776, 781 (Fla. 3d DCA 2010) (Shepherd, J., dissenting) (citing N. Fla. Women's Health & Counseling Servs., Inc. v. State, 866 So. 2d 612, 641 (Fla. 2003) ).
Accordingly, in order to terminate parental rights, the State is required to establish by clear and convincing evidence the existence of at least one statutory ground for termination. See § 39.806, Fla. Stat. (2018) ; S.M. v. Fla. Dep't of Children & Families, 202 So. 3d 769, 775 (Fla. 2016). It must further prove termination is in the manifest best interest of the child and the least restrictive means to protect the child from serious harm. See K.R.L. v. Dep't of Children & Family Servs., 83 So. 3d 936, 938 (Fla. 3d DCA 2012). Therefore,
[t]o protect the rights of the parent and child, ... before parental rights in a child can be permanently and involuntarily severed, the [S]tate must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child. Implicit in this standard is the basic requirement that, under ordinary circumstances, the [S]tate must show that the parent abused, neglected[,] or abandoned a child.
Padgett v. Dep't of Health & Rehab. Servs., 577 So. 2d 565, 571 (Fla. 1991) (emphasis added).
The least restrictive means test "is not intended to preserve a parental bond at the cost of a child's future." S.M., 202 So. 3d at 778 (citation omitted). However, "[t]he clear purpose of the use of the least restrictive means is the ‘reestablishment of the parent-child bond.’ " In re K.W., 891 So. 2d 1068, 1070 (Fla. 2d DCA 2004) (quoting M.H. v. Dep't of Children & Families, 866 So. 2d 220, 223 (Fla. 1st DCA 2004) ). Thus, "those measures short of termination should be utilized if such measures can permit the safe reestablishment of the parent-child bond." S.S. v. D.L., 944 So. 2d 553, 558 (Fla. 4th DCA 2007) (quoting L.B. v. Dep't of Children & Families, 835 So. 2d 1189, 1196 (Fla. 1st DCA 2002) ). As such, "in order to establish that termination is the least restrictive means, [the Department] must show that the parent will not benefit from court ordered services." C.A.T. v. Dep't of Children & Families, 10 So. 3d 682, 684 (Fla. 5th DCA 2009) (citations omitted); see In re D.L.H., 990 So. 2d 1267, 1273 (Fla. 2d DCA 2008) ("Because there was no evidence that the Father would not benefit from court-ordered services, the trial court erred in concluding that the termination of the Father's parental rights was the least restrictive means of protecting [the child]."), superseded by statute, § 39.806(1)(f), Fla. Stat.; M.S. v. Dep't of Children & Families, 920 So. 2d 847, 851 (Fla. 4th DCA 2006) (concluding that the least restrictive means of protecting the child would be to offer the mother a case plan); C.B. v. Dep't of Children & Families, 874 So. 2d 1246, 1252 (Fla. 4th DCA 2004) ("[T]erminating the mother's parental rights was not the least restrictive means of protecting the child and we reverse the order of the trial court so that a case plan, with a goal of reunification, can be established."); see also J.J. v. Dep't of Children & Families, 994 So. 2d 496, 503 (Fla. 4th DCA 2008). "In the usual case, satisfaction of this test is relatively uncomplicated. Typically, an ‘offending parent’ has intentionally abandoned his [or her] child, abused the child, intentionally or recklessly exposed the child to danger, abused drugs or alcohol to the detriment of the child, or become incarcerated." N.S., 36 So. 3d at 781 (Shepherd, J., dissenting).
"The least restrictive means prong of the termination of parental rights test is tied directly to the due process rights that must be afforded to a parent before his or her parental rights are terminated and is intended to protect the rights of both the parent and the child. This prong focuses specifically on what actions were taken by the State before filing a petition to terminate the parent's rights." S.M., 202 So. 3d at 778.
In the instant case, we find the record inadequate to support termination on any of the grounds relied upon by the trial court. As it relates to the "irrespective of services" finding, the Department's evidence was based upon the report of the psychologist, conducted at the onset of the termination proceedings and prior to the mother's receipt of services, setting forth the diagnosis of borderline intellectual functioning and a low intelligence quotient. See § 39.806(1)(c), Fla. Stat. ("When the parent or parents engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent ... threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services .") (emphasis added). It is well settled that low intellectual functioning, independently, is an insufficient basis to terminate parental rights. See Padgett, 577 So. 2d at 571 ("[A] parent's intelligence level ordinarily is irrelevant to [the termination of parental rights] inquiry."). Rather, any purported intellectual deficiency must interfere with the ability to parent and provide a safe home for the children. However, here, the record does not contain competent, substantial evidence of such a nexus.
Further, although the mother's poor prognosis for responding to services may have indeed been correct, given the failure by the Department to obtain an updated evaluation following the mother's completion of significant rehabilitative therapies, the trial court was divested of a meaningful opportunity to appropriately assess the mother's amenability to treatment. See J.F. v. Dep't of Children & Families, 890 So. 2d 434, 439-42 (Fla. 4th DCA 2004) ("The Department's evidence was based upon interviews and incidents that occurred prior to the mother beginning therapy ... [B]ecause the Department failed to evaluate the mother once she began long-term counseling, there is no expert testimony as to whether the individual counseling she was receiving was making a difference ..."). At the time of the final adjudication hearing, the mother had completed all of her case plan, with the exception of the remaining dyadic therapy sessions. The only contemporary evidence presented to the trial court revealed that the mother was amenable to treatment. In contravention to the outdated opinion of the psychologist, several individual therapy reports reflected her strides in insight, accountability, and problem-solving. A post-evaluation dyadic therapy status report positively described the mother and children's "eagerness to spend time together" and relayed the mother's "improvements since beginning dyadic sessions," including the mother's ability "to effectively apply ... positive discipline techniques." As the record does not reflect evidence that sufficiently "connect[s] [the mother's] past with [her] present situation to show" that the children were at significant risk, the record is insufficient to support termination on this ground. J.B. v. Dep't of Children & Families, 107 So. 3d 1196, 1202 (Fla. 1st DCA 2013).
In 2017, despite recommendations by the assigned therapist, the Department did not allow for a gradual transition to unsupervised visitation. Thereafter, the foster parents were permitted to severely curtail telephonic contact and the mother was prohibited from visiting two of the children at their day care facilities.
With regard to the mother's failure to complete the case plan, contrary to the trial court's findings, the record conclusively demonstrates that the mother's fallibilities were precipitated by her dire economic circumstances. This is best illustrated by the fact that during the mother's episode of poverty, instead of reasonably assisting her in obtaining emergency housing and social services, the Department left the mother without viable options, essentially ensuring she would be left financially bereft and unable to fulfill the remaining demands of her case plan. See § 39.806(1)(e)(1), Fla. Stat. ("The failure of the parent ... to substantially comply with the case plan ... constitutes evidence of continuing abuse, neglect, or abandonment unless the failure to substantially comply with the case plan was due to the parent's lack of financial resources or to the failure of the department to make reasonable efforts to reunify the parent and child .") (emphasis added); § 39.806(1)(e)(3), Fla. Stat. ("The child has been in care for any 12 of the last 22 months and the parents have not substantially complied with the case plan ... unless the failure to substantially comply with the case plan was due to the parent's lack of financial resources or to the failure of the department to make reasonable efforts to reunify the parent and child .") (emphasis added).
After the mother, through her own arduous efforts, managed to remedy her poverty, instead of investigating the suitability of her newly acquired housing for the children, interviewing her employer, or effecting the court-ordered transfer of the remaining dyadic therapy, the Department relied upon her prior plight to avoid further reunification efforts. See Padgett, 577 So. 2d at 571 ("[F]actors related to a parent's lack of financial resources cannot support permanent termination of parental rights."); D.M. v. Dep't of Children & Families, 79 So. 3d 136, 139 (Fla. 3d DCA 2012) ("If the Department contends failure to comply with the case plan supports termination, it must show the failure to comply was attributable to the parent, not the Department."). As the Department is tasked with providing services, we conclude the evidence did not support a finding that any failure to comply with the case plan was attributable to the mother.
Finally, the record reflects there was no impediment to allowing the mother time to undergo further therapy in Kentucky and submit to an additional psychological evaluation, as the foster parents, including relatives, expressed willingness to continue to foster the children. See M.H., 866 So. 2d at 223 (finding "there was no evidence that termination of [the mother's] parental rights was the least restrictive means of protecting her children [as a]t least five relatives ... were willing to take the children"). Accordingly, the Department "failed to prove that no measures short of termination would have been appropriate." W.W. v. Dep't of Children & Families, 218 So. 3d 490, 494 (Fla. 1st DCA 2017) ; see S.M., 202 So. 3d at 778-79 ("To satisfy the least restrictive means prong, [the Department] must ‘ordinarily’ prove that before it files a petition to terminate the parent's rights, [the Department] made a ‘good faith effort to rehabilitate the parent and reunite the family’ ... The least restrictive means prong ... ‘simply requires that measures short of termination should be utilized if such measures can permit the safe reestablishment of the parent-child bond.’ ") (citations omitted); I.R. v. Dep't of Children & Family Servs., 904 So. 2d 583, 588 (Fla. 3d DCA 2005) ("The burden of proof is on the Department to prove by clear and convincing evidence that a termination of the parent's rights is the least restrictive means of protecting a child from harm."). Under these circumstances, the Department failed to "prove by clear and convincing evidence that termination of parental rights [is] the least restrictive means to protect the child[ren] from harm." D.O. v. S.M., 981 So. 2d 11, 12 (Fla. 4th DCA 2007), review denied, 989 So. 2d 1184 (Fla. 2008).
CONCLUSION
"[E]ven though temporary failures and derelictions of parents may justify temporary deprivation of the custody of ... children, it will seldom justify the permanent deprivation of parental rights." In re Adoption of Gossett, 277 So. 2d 832, 834 (Fla. 1st DCA 1973). Here,
It is evident, as [the Department] and the [Guardian ad Litem] have clearly shown, that the [mother] is not a model parent. We are not aware of a precise definition that tells us what a model parent is. Perhaps it is nothing more than a mythical figure, much like the reasonable person in tort law, that good parents should seek to emulate. Although it may be inescapable that many will assume that mothers and fathers may not be model parents if [the Department] has intervened in their lives to protect their child from harm, the law does not profess to require parental perfection. Indeed, the provisions contained in chapter 39 reveal an acute awareness that many parents, like the [mother] in the instant case, are in need of assistance to achieve the necessary skills to simply be adequate parents who do not harm, neglect[,] or abuse their children.
C.A.T., 10 So. 3d at 685. As the statutory grounds for termination are unsupported by the record, and as the State failed to establish by clear and convincing evidence that the termination of parental rights was the least restrictive means of protecting the children from serious harm, we reverse the final judgments under review and remand this cause to the trial court for continuation of the children's dependency status, without prejudice to the Department to reinstitute termination proceedings, if appropriate, at such time as it is evident that termination of the mother's parental rights is the least restrictive means available to protect the life, safety, and health of the children, and for further proceedings consistent with this opinion.
Reversed and remanded.