W. W., FATHER OF V.H. and V.H.J., MINOR CHILDREN, Appellant,
DEPARTMENT OF CHILDREN AND FAMILIES, Appellee
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Leon County. Karen A.
P. Roberts of Law Office of Terry P. Roberts, Tallahassee,
Perkins, Appellate Counsel, Department of Children and
Families, Miami, for Appellee.
A. Swartz, Appellate Counsel, Guardian ad Litem Program,
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.
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
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. 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.
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.
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
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.
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
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 ...