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W. W. v. Department of Children and Families

Florida Court of Appeals, First District

May 5, 2017

W. W., FATHER OF V.H. and V.H.J., MINOR CHILDREN, Appellant,


         An appeal from the Circuit Court for Leon County. Karen A. Gievers, Judge.

          Terry P. Roberts of Law Office of Terry P. Roberts, Tallahassee, for Appellant.

          Karla Perkins, Appellate Counsel, Department of Children and Families, Miami, for Appellee.

          Kelly A. Swartz, Appellate Counsel, Guardian ad Litem Program, Sanford.

          PER CURIAM.

         W.W., the natural father of V.H. and V.H.J., appeals a final order terminating his parental rights over the children. Because we conclude termination was not the least restrictive means of protecting the children from harm, we reverse.

         The twin children were born in Mississippi in 2010, and moved to Florida with their mother shortly thereafter. The twins and their two half-siblings lived in Florida in their mother's care until 2015, except for a brief period in 2012 when they were sheltered due to allegations of neglect. In May 2011, W.W. was sentenced to fourteen years' imprisonment in Mississippi for sale of cocaine. W.W. had no contact with the twins prior to his incarceration. His paternity was not established until 2012. The only time W.W. met the twins in person was in 2014, when the mother brought the twins to Mississippi while W.W. was on a furlough pass from prison.

         In April 2015, the Department of Children and Families (DCF) petitioned for emergency shelter placement for the mother's four children, due to reports of drug use by the mother, neglect, and unsafe conditions in the home.[1] After a hearing, the twins were sheltered and placed in foster care. Shortly thereafter, the twins were adjudicated dependent. A case plan with the goal of reunification was approved by the court. The case plan included numerous tasks for the mother as the custodial parent. It also required W.W. to have phone visitation with the twins twice a week and to make the case manager aware of any problems reaching the twins at the foster parent's home. Over the next twelve months, the court conducted several judicial review hearings, and several case plan updates were submitted. W.W. appeared by telephone at every hearing. The evidence is undisputed that W.W. did not make the required phone calls to comply with the case plan. He testified it was because he was only able to make collect calls in prison.

         Twelve months after the children were adjudicated dependent, DCF sought to terminate the parental rights of the mother and W.W. over the twins. The petition alleged three statutory grounds for terminating W.W.'s rights: (1) abandonment under section 39.806(1)(b), Florida Statutes (2016); (2) failure to comply with the case plan under section 39.806(1)(e)1., Florida Statutes (2016); and (3) harm from a continuing relationship with the incarcerated parent under section 39.806(1)(d)3., Florida Statutes (2016). W.W. was served with the petition on May 11, 2016. He entered a denial to the petition.

         But days after the TPR petition was filed, the mother died in a car accident. However, the proceedings as to W.W. moved forward, and the TPR trial was scheduled for June 22, 2016. On June 17, 2016, DCF filed an amended petition, removing failure to comply with the case plan as a basis for termination and adding a new statutory ground: that W.W. would be incarcerated for a significant portion of the twins' minority, under section 39.806(1)(d)1., Florida Statutes (2016). W.W. moved to continue the TPR trial for "a short period of several weeks, " asserting that he had not yet been served with the amended petition and further alerting the court that the parole board in Mississippi was to establish a release date for him sometime in July 2016, and that he would know the precise release date by July 1, 2016. DCF also moved to continue the trial, because DCF had not yet served W.W. with the amended petition. Although the Guardian ad Litem did not object to the delay, the court declined to continue the trial except to the extent it would relate to the new ground alleged in the amended petition.[2]

         The trial proceeded on the grounds alleged in the initial petition, and after service of the amended petition, the trial continued on July 28, 2016. W.W. testified that he would be released on August 2, 2016, just five days after trial. An officer from the prison where W.W. was incarcerated confirmed that W.W. would be released on that date. W.W. testified that upon release he would live with his aunt, that there was living space in the home for the twins, and that he had arranged employment as a roofer. W.W. testified that he loved the twins and wanted to care for them.

         W.W. acknowledged that he had not attempted to make collect phone calls to the twins and had not written to them. He further acknowledged that the twins knew little of him. W.W. stated that although he was given seventy-two-hour furlough passes on a quarterly basis, he was unable to use that time to visit the twins because he was not permitted to leave Mississippi. But he testified that he did call the twins during his furloughs.

         Following the trial, the court ruled that DCF established all three statutory grounds alleged in the amended petition, that termination was in the twins' manifest best interest, and that it was the least restrictive ...

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