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R.W. v. Department of Children and Families

Florida Court of Appeals, Fifth District

November 3, 2017

R.W., FATHER OF K.W., V.W. AND A.W., CHILDREN, Appellant
v.
DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. DEPARTMENT OF CHILDREN AND FAMILIES AND GUARDIAN AD LITEM PROGRAM O/B/O K.W., V.W. AND A.W., CHILDREN, Appellants,
v.
R.A.D. and R.W., PARENTS, Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Appeal from the Circuit Court for Hernando County, Donald Scaglione, Judge.

          Edward Juan Lynum, of Lynum & Associates, PLLC, Leesburg, for Father, R.W.

          Elliott Ambrose, Brooksville. for Mother, R.A.D.

          Stephanie C. Zimmerman, Deputy Director & Statewide Director of Appeals, Children's Legal Services, Bradenton, and Rachel Batten, Hernando County Children's Legal Services, Brooksville, for Department of Children and Families

          Laura J. Lee, Sanford, for Guardian Ad Litem Program.

          PER CURIAM.

         The Department of Children and Families (Department) and the Guardian ad Litem Program (GAL) appeal from the trial court's order denying a petition for termination of parental rights filed by the Department against both parents, R.A.D. and R.W. Although the trial court found three separate grounds for termination, it denied the petition because it found the Department had not proven that termination was the least restrictive means of protecting the children because the parents "require an opportunity to rehabilitate or fail." Instead, the court adjudicated the children dependent and directed the Department to provide the parents with a case plan. We affirm the trial court's findings that the Department proved grounds for termination of parental rights as to both parents, but reverse as to the trial court's finding that termination was not the least restrictive means. We also affirm the trial court's findings of dependency without further discussion.[1]

         The children, K.W., V.W. and A.W., were sheltered in May 2016, based on allegations of substance abuse, mental health issues, domestic violence, and the parents' history with the Department. Based on the mother and father's extensive history of domestic violence, substance abuse, and dependency adjudications, the Department filed an expedited termination of parental rights petition instead of offering the parents another case plan. After a hearing, the trial court concluded that the Department proved grounds for termination against both parents under section 39.806(1)(c) (continuing involvement threatens, irrespective of services) and section 39.806(1)(1) (three or more removals caused by parent), and against the mother under section 39.806(1)(j) (chronic substance abuse), Florida Statutes (2017).

         In its order, the trial court made extensive findings detailing a history of domestic violence and substance abuse on the part of the father, and chronic substance abuse on the part of the mother. The trial court summarized the parents' history as follows:

The evidence and testimony at trial represents a historical biography of this family that dates back to 2005 for the mother and 2009 for the father. It paints a picture of a family plagued by violence and substance misuse. Since 2009, the mother and father have been in a violent, drug-fueled relationship. The victims of that relationship have been the parents' five children who have been removed out of their home on five occasions. [V.W.] and [K.W.] have been removed and placed in out-of-home care three times, initially after they almost died due to the mother's substance misuse and her failure to obtain proper medical care. The mother has been offered six case plans over the course of over a decade. The father has been offered four case[ ] plans over the course of eight years.

         Most importantly, as to the mother, the trial court also expressly found that "[b]ased on the repeated cycle of behavior and the mother's history in the dependency system, there is absolutely NO reasonable basis to believe that she will improve and not engage in the same behaviors again in the future and cause the children to be uprooted and thrust back into the system." The trial court went on, finding that "[h]istory tells us that, even with her engagement in services, the mother will eventually repeat the same behaviors that have caused the removal of all seven of her children on multiple occasions."

         As to the father, the trial court found that he had been offered four case plans and a host of services related to domestic violence and substance abuse treatment. In its order, the trial court found "[d]espite having access to services on four occasions, the father continues to revert back to the same behavior. The father appears to not want to change or acknowledge that there are any issues." The trial court also noted that the father "has not engaged in any services since the children were sheltered this last time."

         Despite these findings, which are supported by competent, substantial evidence contained in the voluminous record on appeal, the court found the Department failed to prove termination was the least restrictive means of protecting the children from harm because the parents "require an opportunity to rehabilitate or fail." In light of its least restrictive means finding, the court did not consider whether termination was in the children's manifest best interests, but ...


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